Rule2024-09902
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Sunrise Wind Offshore Wind Farm Project Offshore New York
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 22, 2024
Effective
June 21, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates regulations to govern the incidental taking of marine mammals incidental to Sunrise Wind, LLC (Sunrise Wind), a 50/50 joint venture between [Oslash]rsted North America, Inc. ([Oslash]rsted) and Eversource Investment, LLC, construction of the Sunrise Wind Offshore Wind Farm Project (hereafter known as the "Project") in Federal and State waters offshore New York, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A-0487 (Lease Area) and along one export cable route to sea- to-shore transition points in Shirley, New York (collectively referred to as the "Project Area"), over the course of 5 years (June 21, 2024--June 20, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during construction-related activities within the Project Area during the effective dates of the regulations, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat as well as requirements pertaining to the monitoring and reporting of such taking.
Full Text
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[Federal Register Volume 89, Number 100 (Wednesday, May 22, 2024)]
[Rules and Regulations]
[Pages 45292-45401]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-09902]
[[Page 45291]]
Vol. 89
Wednesday,
No. 100
May 22, 2024
Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 217
Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Sunrise Wind Offshore Wind Farm
Project Offshore New York; Final Rule
Federal Register / Vol. 89 , No. 100 / Wednesday, May 22, 2024 /
Rules and Regulations
[[Page 45292]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 240501-0124]
RIN 0648-BL67
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Sunrise Wind Offshore Wind Farm
Project Offshore New York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates
regulations to govern the incidental taking of marine mammals
incidental to Sunrise Wind, LLC (Sunrise Wind), a 50/50 joint venture
between [Oslash]rsted North America, Inc. ([Oslash]rsted) and
Eversource Investment, LLC, construction of the Sunrise Wind Offshore
Wind Farm Project (hereafter known as the ``Project'') in Federal and
State waters offshore New York, specifically within the Bureau of Ocean
Energy Management (BOEM) Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf (OCS) Lease
Area OCS-A-0487 (Lease Area) and along one export cable route to sea-
to-shore transition points in Shirley, New York (collectively referred
to as the ``Project Area''), over the course of 5 years (June 21,
2024--June 20, 2029). These regulations, which allow for the issuance
of a Letter of Authorization (LOA) for the incidental take of marine
mammals during construction-related activities within the Project Area
during the effective dates of the regulations, prescribe the
permissible methods of taking and other means of effecting the least
practicable adverse impact on marine mammal species or stocks and their
habitat as well as requirements pertaining to the monitoring and
reporting of such taking.
DATES: This rule is effective from June 21, 2024, through June 20,
2029.
FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
A copy of Sunrise Wind's application and supporting documents,
received public comments, and the proposed rulemaking as well as a list
of the references cited in this document may be obtained online at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In
case of problems accessing these documents, please call the contact
listed above (FOR FURTHER INFORMATION CONTACT).
Purpose and Need for Regulatory Action
This final rule, as promulgated, provides a framework under the
authority of the MMPA (16 U.S.C. 1361 et seq.) for NMFS to authorize
the take of marine mammals incidental to construction of the Project
within the Project Area. NMFS received a request from Sunrise Wind to
incidentally take a small number of marine mammals from 16 species of
marine mammals, comprising 16 stocks (7 stocks by Level A harassment
and Level B harassment; 9 stocks by Level B harassment only),
incidental to Sunrise Wind's 5 years of construction activities.
Sunrise Wind did not request authorization for, and NMFS neither
anticipates nor allows, take by serious injury or mortality incidental
to the specified activities to be authorized under this final
rulemaking.
Legal Authority for the Final Action
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made, regulations are
promulgated (when applicable), and public notice and an opportunity for
public comment are provided.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). If such findings are made, NMFS must prescribe the
permissible methods of taking, other means of effecting the least
practicable adverse impact on the affected species or stocks and their
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance, and on the availability of the species
or stocks for taking for certain subsistence uses (referred to as
``mitigation''); and requirements pertaining to the monitoring and
reporting of such takings.
As noted above, Sunrise Wind did not request for authorization of,
and NMFS neither anticipates nor allows, take by serious injury or
mortality incidental to the specified activities to be authorized under
this final rulemaking. Relevant definitions of MMPA statutory and
regulatory terms are included below:
<bullet> U.S. Citizens--individual U.S. citizens or any corporation
or similar entity if it is organized under the laws of the United
States or any governmental unit defined in 16 U.S.C. 1362(13) (50 CFR
216.103);
<bullet> Take--to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13);
50 CFR 216.3);
<bullet> Incidental Harassment, Incidental Taking and Incidental,
but not Intentional, Taking--an accidental taking. This does not mean
that the taking is unexpected, but rather it includes those takings
that are infrequent, unavoidable, or accidental (50 CFR 216.103);
<bullet> Serious Injury--any injury that will likely result in
mortality (50 CFR 216.3);
<bullet> Level A harassment--any act of pursuit, torment, or
annoyance which has the potential to injure a marine mammal or marine
mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3); and
<bullet> Level B harassment--any act of pursuit, torment, or
annoyance which has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (16 U.S.C. 1362(18); 50 CFR 216.3).
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I, provide the legal basis for proposing
and, if appropriate, issuing regulations and an associated LOA(s). This
final rule establishes permissible methods of taking and mitigation,
monitoring, and reporting requirements for Sunrise Wind's construction
activities.
Summary of Major Provisions Within the Final Rule
The major provisions of this final rule are:
<bullet> Allowing NMFS to authorize, under a LOA, the take of small
numbers of
[[Page 45293]]
marine mammals by Level A harassment and/or Level B harassment (50 CFR
217.312) incidental to the Project and prohibiting take of such species
or stocks in any manner not permitted (50 CFR 217.313) (e.g., mortality
or serious injury);
<bullet> Establishing a seasonal moratorium for foundation impact
pile driving from January 1 through April 30 annually and requirements
to avoid, to the maximum extent practicable, foundation impact pile
driving in December and to obtain NMFS prior approval to minimize
impacts to the North Atlantic right whale (NARW) (Eubalaena glacialis);
<bullet> Establishing a seasonal moratorium on the detonation of
unexploded ordnance or munitions and explosives of concern (UXO/MEC)
from December 1 through April 30 annually to minimize impacts to NARW;
<bullet> Requirements for UXO/MEC detonations to only occur if all
other means of removal are exhausted (i.e., As Low As Reasonably
Practical (ALARP) risk mitigation procedure) and conducting UXO/MEC
detonations during daylight hours only and limiting detonations to 1
per 24-hour period;
<bullet> Conducting both visual and passive acoustic monitoring
(PAM) by trained, NMFS-approved Protected Species Observers (PSOs) and
PAM operators before, during, and after select in-water construction
activities;
<bullet> Requiring training for all Project personnel to ensure
marine mammal protocols and procedures are understood;
<bullet> Establishing clearance and shutdown zones for all in-water
construction activities to prevent or reduce the risk of Level A
harassment and to minimize the risk of Level B harassment, including a
delay or shutdown of foundation impact pile driving and delay to UXO/
MEC detonation if a NARW is observed at any distance by PSOs or
acoustically detected within certain distances;
<bullet> Establishing minimum visibility and PAM monitoring zones
during foundation impact pile driving;
<bullet> Requiring use of at least two sound attenuation devices
during all foundation impact pile driving installation activities and
UXO/MEC detonations to reduce noise levels to those modeled assuming a
broadband 10 decibel (dB) attenuation;
<bullet> Requiring sound field verification (SFV) monitoring during
impact pile driving of foundation piles and during UXO/MEC detonations
to measure in situ noise levels for comparison against the modeled
results and ensure noise levels assuming 10 dB attenuation are not
exceeded;
<bullet> Requiring SFV during the operational phase of the Project;
<bullet> Implementing soft-starts during impact pile driving and
ramp-up during the use of high-resolution geophysical (HRG) marine site
characterization survey equipment;
<bullet> Requiring various vessel strike avoidance measures;
<bullet> Requiring various measures during fisheries monitoring
surveys, such as immediately removing gear from the water if marine
mammals are considered at-risk of interacting with gear;
<bullet> Requiring regular and situational reporting including, but
not limited to, information regarding activities occurring, marine
mammal observations and acoustic detections, and sound field
verification monitoring results; and
<bullet> Requiring monitoring of the NARW sighting networks,
Channel 16, and PAM data as well as reporting any sightings to NMFS.
Through adaptive management (50 CFR 217.317(c)(1)) NMFS Office of
Protected Resources may modify (e.g., remove, revise, or add to) the
existing mitigation, monitoring, or reporting measures summarized above
and required by the LOA. NMFS must withdraw or suspend an LOA issued
under these regulations after notice and opportunity for public comment
if it finds the methods of taking or the mitigation, monitoring, or
reporting measures are not being substantially complied with (16 U.S.C.
1371(a)(5)(B); 50 CFR 216.106(e)). Additionally, failure to comply with
the requirements of the LOA may result in civil monetary penalties and
knowing violations may result in criminal penalties (16 U.S.C. 1375; 50
CFR 216.106(g)).
Fixing America's Surface Transportation Act (FAST-41)
This project is covered under Title 41 of the Fixing America's
Surface Transportation Act, or ``FAST-41''. FAST-41 includes a suite of
provisions designed to expedite the environmental review for covered
infrastructure projects, including enhanced interagency coordination as
well as milestone tracking on the public-facing Permitting Dashboard.
FAST-41 also places a 2-year limitations period on any judicial claim
that challenges the validity of a Federal agency decision to issue or
deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-
6(a)(1)(A)). The Project is listed on the Permitting Dashboard, where
milestones and schedules related to the environmental review and
permitting for the project can be found: <a href="https://www.permits.performance.gov/permitting-project/sunrise-wind-farm">https://www.permits.performance.gov/permitting-project/sunrise-wind-farm</a>.
Summary of Request
On November 10, 2021, Sunrise Wind submitted a request for the
promulgation of regulations and issuance of an associated 5-year LOA to
take marine mammals incidental to construction activities associated
with the Project offshore of New York in the BOEM Lease Area OCS-A-
0487. Sunrise Wind's request is for the incidental, but not
intentional, taking of a small number of 16 marine mammal species
(comprising 16 stocks) by Level B harassment (for all 16 species or
stocks) and by Level A harassment (for 7 of the 16 species or stocks).
Sunrise Wind did not request authorization for, and NMFS does not
expect, take by serious injury or mortality to occur for any marine
mammal species or stock incidental to the specified activities.
In response to our questions and comments and following extensive
information exchange between Sunrise Wind and NMFS, Sunrise Wind
submitted a final revised application on May 9, 2022, which NMFS deemed
adequate and complete on May 10, 2022. This final application is
available on NMFS' website at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind">https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind</a>.
On June 2, 2022, NMFS published a notice of receipt (NOR) of
Sunrise Wind's adequate and complete application in the Federal
Register (87 FR 33470), requesting comments and soliciting information
related to Sunrise Wind's request during a 30-day public comment
period. During the NOR public comment period, NMFS received comment
letters from two environmental non-governmental organizations: Clean
Ocean Action and Oceana. NMFS reviewed all submitted material and took
the material into consideration during the drafting of the proposed
rule. Subsequently, in June 2022, new scientific information was
released regarding marine mammal densities (Robert and Halpin, 2022)
and, as such, Sunrise Wind submitted a final Updated Density and Take
Estimation Memo to NMFS on December 15, 2022 that included updated
marine mammal densities and take estimates. This memo is available on
our website at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind">https://www.fisheries.noaa.gov/action/incidental-take-authorization-sunrise-wind-llc-construction-and-operation-sunrise-wind</a>.
On February 10, 2023, NMFS published the proposed rule for the
Project in the Federal Register (88 FR
[[Page 45294]]
8996). In the proposed rule, NMFS synthesized all of the information
provided by Sunrise Wind, all best available scientific information and
literature relevant to the proposed project, outlined, in detail,
proposed mitigation designed to effect the least practicable adverse
impacts on marine mammal species and stocks as well as proposed
monitoring and reporting measures, and made preliminary negligible
impact and small numbers determinations. The public comment period on
the proposed rule was open for 30 days from February 10, 2023 through
March 13, 2023 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. A summary of public
comments received during this 30-day period is described in the
Comments and Responses section; full public comments may be viewed on
<a href="https://regulations.gov">https://regulations.gov</a>.
On March 23, 2023, after the proposed rule was published and the
public comment period concluded, Sunrise Wind submitted revised take
and exposure estimates resulting from a reduction in the number of wind
turbine generator (WTG) foundations to be installed (94 to 87; Reduced
WTG Foundation report) and then a correction shortly thereafter
(Reduced WTG Foundation Corrected tables 50 and 51). Pile size (maximum
7/12 m diameter tapered monopiles and 4-m pin piles for the jacket
foundation) and hammer size (maximum 4,000 kJ hammer) did not change,
nor did the underlying modeling and take estimate methodologies. A
reduction in total WTG foundations results in an overall reduction in
take within the Lease Area and, therefore, an overall reduction in take
across the 5-year duration of Project activities. Also, in March 2023,
Sunrise Wind submitted a revised Temporary Pier Pile Driving at the
Sunrise Wind Landfall--Take Assessment and Mitigation Measures Memo.
This memo removed the work associated with the plan to install mooring
and breasting dolphins near the boat ramp at the Smith Point Marina on
the Long Island side of the ICW. As described in the proposed rule,
Sunrise Wind did not request and NMFS did not propose to authorize take
of marine mammals incidental to temporary pier and breasting and
mooring dolphin construction activities, and thus, the estimated take
numbers have not changed due to the removal of these activities.
In April 2023, Sunrise Wind submitted a supplementary report that
demonstrates its ability to accurately determine the charge weight of
UXO/MEC encountered in the field prior to detonation. Because of this
report, the final rule provides Orsted with specific mitigation and
monitoring zone sizes based on charge weight bin sizes and no longer
requires that the E12 (largest) charge weight mitigation and monitoring
zones apply to smaller charge weight sizes, provided that Sunrise Wind
is able to confirm the smaller charge weight size before any
detonation.
NMFS previously issued four Incidental Harassment Authorizations
(IHAs) to [Oslash]rsted for the taking of marine mammals incidental to
marine site characterization surveys using HRG equipment of the Sunrise
Wind's Lease Area (OCS-A 0487) and surrounding Lease Areas (OCS-A 0486,
OCS-A 0500) (84 FR 52464, October 2, 2019; 85 FR 63508, October 8,
2020; 87 FR 756, January 6, 2022; and 87 FR 61575, October 12, 2022).
In addition, NMFS issued an IHA to South Fork Wind (a subsidiary of
[Oslash]rsted) to install foundations and conduct HRG surveys for
construction of the South Fork Wind Project (87 FR 806; January 6,
2022). To date, [Oslash]rsted has complied with all IHA requirements
(e.g., mitigation, monitoring, and reporting) and has not exceeded the
number of take authorized. Information regarding [Oslash]rsted's
monitoring results relevant to the Sunrise Wind Project may be found in
the Estimated Take section and the final monitoring reports, where
available, can be found on NMFS' website: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
On August 1, 2022, NMFS announced proposed changes to the existing
NARW vessel speed regulations to further reduce the likelihood of
mortalities and serious injuries to endangered right whales from vessel
collisions, which are a leading cause of the species' decline and a
primary factor in an ongoing Unusual Mortality Event (UME) (87 FR
46921, August 1, 2022). Should a final vessel speed rule be issued and
become effective during the effective period of these regulations (or
any other MMPA incidental take authorization), the authorization holder
will be required to comply with any and all applicable requirements
contained within the final rule. Specifically, where measures in any
final vessel speed rule are more protective or restrictive than those
in this or any other MMPA authorization, authorization holders will be
required to comply with the requirements of the vessel speed rule.
Alternatively, where measures in this or any other MMPA authorization
are more restrictive or protective than those in any final vessel speed
rule, the measures in the MMPA authorization will remain in place. The
responsibility to comply with the applicable requirements of any vessel
speed rule will become effective immediately upon the effective date of
any final vessel speed rule, and when notice is published on the
effective date, NMFS will also notify Sunrise Wind if the measures in
the speed rule were to supersede any of the measures in the MMPA
authorization such that they were no longer required.
On February 22, 2024, Sunrise Wind provided an updated Project
schedule that aligns with their December 2023 Construction and
Operations Plan submitted to BOEM for approval. Based on this update,
Sunrise Wind has requested the regulations and associated LOA be
effective from June 21, 2024 through June 20, 2029.
Description of the Specified Activity
Overview
Sunrise Wind has proposed to construct and operate a 924 to 1,034
megawatt (MW) wind energy facility (known as Sunrise Wind Farm (SRWF))
in the Project Area. Sunrise Wind's project would consist of several
different types of permanent offshore infrastructure, including 87 WTGs
on monopile foundations with a maximum diameter tapering from 7 meters
(m) above the waterline to 12 m below the waterline (7/12 m), a single
offshore converter substation (OCS-DC) on a jacket foundation
(comprised on 4-m pin piles), offshore substation array cables, and
substation interconnector cables. Specifically, activities to construct
the project include: (1) impact pile driving the WTG and OSC-DC
foundations; (2) pneumatic hammering for installation and removal of
temporary casing pipes and vibratory pile driving for installation and
removal of temporary goal post and sheet piles at the cable landfall
site; (3) impact and vibratory pile driving associated with the Smith
Point County Park temporary pier; (4) trenching, laying, and burial
activities associated with the installation of the export cable route
from the OCS-DC to the shore-based converter station and inter-array
cables between turbines; (5) site preparation work (e.g., boulder
removal); placement of scour protection around foundations; (6) HRG
vessel-based site characterization surveys using active acoustic
sources with frequencies of less than 180 kHz; (7) detonating up to
three UXO/MEC of different charge weights; and (8) several types of
fishery and ecological monitoring surveys. Vessels would transit within
the Project Area and between ports and the SRWF to
[[Page 45295]]
transport crew, supplies, and materials to support pile installation.
All offshore cables will connect to onshore export cables, substations,
and grid connections, which would be located at Smith Point County Park
in Shirley, New York. Marine mammals exposed to elevated noise levels
during impact and vibratory pile driving, UXO/MEC detonation, pneumatic
hammering, or HRG site characterization surveys may be taken by Level A
harassment and/or Level B harassment, depending on the specified
activity. Other activities listed above are not anticipated to result
in take either due to the nature of the activities or due to the
implementation of monitoring and mitigation measures.
Dates and Duration
Since publication of the proposed rule, Sunrise Wind has provided
an updated Project schedule (table 1) based on the latest version of
their Construction and Operations Plan submitted to BOEM for approval.
While this is the most recent schedule at time of promulgating this
rulemaking, NMFS recognizes the potential for activity schedules to
shift such that they may occur during different timeframes.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TR22MY24.000
BILLING CODE 3510-22-C
[[Page 45296]]
Specific Geographic Region
A detailed description of the Specific Geographic Region,
identified as the Mid-Atlantic Bight, is provided in the proposed rule
(88 FR 8996, February 10, 2023). Since the proposed rule was published,
no changes have been made to the Specified Geographic Region.
Generally, Sunrise Wind's specified activities (i.e., impact pile
driving of monopile and jacket foundations; vibratory pile driving
(installation and removal) of temporary goal posts and sheet piles;
pneumatic hammering of temporary casing pipes; impact and vibratory
pile driving associated with the Smith Point County Park temporary
pier; placement of scour protection; trenching, laying, and burial
activities associated with the installation of the SRWEC and inter-
array cables; HRG site characterization surveys; UXO/MEC detonation;
and WTG operation) are concentrated in the Project Area. Vessel transit
may originate from ports in New York, Connecticut, Maryland,
Massachusetts, New Jersey, Rhode Island, and Virginia.
[GRAPHIC] [TIFF OMITTED] TR22MY24.044
Comments and Responses
NMFS published a proposed rule in the Federal Register on February
10, 2023 and opened a 30-day public comment period (88 FR 8996). The
proposed rule described, in detail, Sunrise Wind's specified
activities, the specific geographic region of the specified activities,
the marine mammal species that may be affected by those activities, and
the anticipated effects on marine mammals. In the proposed rule, NMFS
requested that interested persons submit relevant information,
suggestions, and comments on Sunrise Wind's request for the
promulgation of regulations and issuance of an associated LOA described
therein, our estimated take analyses, the preliminary determinations,
and the proposed regulations.
NMFS received 578 comment submissions, including from the Marine
Mammal Commission (Commission), several non-governmental organizations,
and private citizens, all of which are available for review on
<a href="http://www.regulations.gov">www.regulations.gov</a>. Most of these comments were out-of-scope or not
applicable to the Project (e.g., general opposition to or support of
offshore wind projects; concerns for other species outside NMFS'
jurisdiction such as birds) and are not described herein or discussed
further. Moreover, NMFS does not include comments recommended that the
final rule include mitigation, monitoring, or reporting measures that
were already included in the proposed rule and such measures are
carried forward in this final rule, as those comments did not raise
significant points for NMFS to consider. Furthermore, if a comment
received was unclear, NMFS does not include it here as it could not
determine whether it raised a significant point for NMFS to consider.
Non-governmental organizations that submitted comments included: (1)
Responsible Offshore Development Alliance (RODA); (2) Oceana, Inc.
(Oceana); (3) Natural Resources Defense Council (NRDC); (4) Clean Ocean
Action (COA); (5) Seafreeze Limited; (6) Long Island Commercial Fishing
Association; (7) Green Ocean; and (8) Allco Renewable Energy Limited.
NMFS considered substantive comments in this final rule, including
comments related to the estimated take analysis, final determinations,
and final mitigation, monitoring, and reporting requirements. A summary
of comments is described below, along with NMFS' responses.
Comment 1: The Commission recommends that, until JASCO Applied
[[Page 45297]]
Sciences' (hereafter, ``JASCO'') model has been validated with in situ
measurements from the impact installation of monopiles and pin piles
along the Atlantic coast, NMFS should re-estimate the various Level A
harassment and Level B harassment zones for the final rule using source
levels that are at a minimum 3 dB greater than those currently used.
Response: The Commission has expressed concerns about the lack of
validation of JASCO's models in previous Commission letters for
[Oslash]rsted's other wind projects. JASCO has compared their source
model predictions to an empirical model prediction by the Institute of
Technical and Applied Physics (ITAP). The empirical model is based on a
large data set of pile driving sounds measured at 750 m from the source
collected during installation of large-diameter piles (up to 8 m)
during wind farm installation in the North Sea (Bellmann, 2020). As no
noise measurements exist for tapered 7/12-m monopile at this time as
these have yet to be installed offshore, the ITAP prediction
facilitates a way of validating the source levels of the numerical
finite difference (FD) model. The ITAP data are averaged across
different scenarios--pile sizes are grouped, which includes different
hammers, water depths, depths of penetration, and environmental
conditions--and the 95th percentile level is reported, whereas the aim
of JASCO's modeling is to estimate the median value. While the ITAP
forecast and the FD source predictions were comparable (K[uuml]sel et
al., 2022)), there is variance in the underlying ITAP data and there
are parametric choices for the FD model in the different environments,
so an exact match is not expected. As part of the comparison, it was
found that different, but reasonable, parametric input choices in the
FD modeling can result in output differences on the order of the
variance in the ITAP data so it was concluded that the FD modeling
approach performed as well as can be discernible given the available
data. While adding 3 dB to the JASCO predictions at 750 m may bring
JASCO's source predictions into line with the finite-element (FE)
predictions for the portmanteau combining computation, comparison, and
pile (COMPILE) scenario, it is not clear that this would be more
accurate. This approach assumes that the FE models are correct, but
Lippert et al. (2016) also state ``a drawback of [the FE] approach is
that it simulates the energy loss due to friction in an indirect and
rather nonphysical way.'' The Commission also suggested that NMFS could
have used damped cylindrical spreading model (DCSM; Lippert et al.,
2018) and the source levels provided by the time-domain finite
difference pile-driving source model (TDFD PDSM); however, for reasons
described herein, NMFS has determined JASCO's model results are
reliable and achievable.
Measurements taken during the Coastal Virginia Offshore Wind (CVOW)
Pilot Project reported the maximum distance to the marine mammal Level
B threshold (160 dB re 1 microPascal (1[mu]Pa)) from the 7.8-m pile
installed with a double big bubble curtain to be 3,891 m (12,765.75
feet (ft)) when using a hammer operating at a maximum of 550 kilojoules
(kJ) (WaterProof, 2020). JASCO's model prediction for 7/12-m tapered
piles using a 4,000-kJ hammer is 3,833 m (12,575 ft). The Commission
states that, based on the CVOW reported sound levels, it is unrealistic
that an impact hammer with seven times more energy intensity would
result in a smaller harassment zone. NMFS disagrees. Small differences
in the propagation environment could account for the ranges being more
comparable than expected. The CVOW pilot project is located in Virginia
whereas the Sunrise Wind project is located in southern New England.
Also, since the proposed rule was published, NMFS has received
sound field verification reports from the South Fork Wind project,
which used JASCO's modeling. In all but one case, the measured
distances to NMFS' Level B harassment threshold were lower than JASCO's
model predicted. The distance to NMFS Level B harassment threshold for
the South Fork Wind project was modeled as 4,684 m while insitu
measurements identified distances, excluding the one aforementioned
pile, ranging from 1.84 kilometers (km) to 3.25 km. JASCO's modeling
predicts the distances to the Level B harassment threshold during
installation of the Sunrise Wind 7/12 m tapered monopiles will be
approximately 6 to 6.5 km in summer depending on hammer size, which is
approximately double than the loudest pile installed during the South
Fork Wind results. NMFS notes that South Fork Wind determined that the
one pile generating noise levels above those predicted (the first pile)
did so due to a malfunctioning noise attenuation system, which was
quickly rectified and deployed appropriately on all future piles.
Since the close of the public comment period, NMFS has also
received SFV reports from Vineyard Wind. However, due to the hammer
energy assumption in the model versus what was used in the field (i.e.,
more hammer energy was used than modeled) and other operational
challenges, it is more challenging to compare the Vineyard Wind
measured results directly to the modeled results. Further, NMFS
acknowledges the uncertainty associated with predicting phenomena such
as propagation loss and its potential variability within a region but
overall, JASCO's models are supported by recent measured results.
Importantly, in this final rule, should SFV results reveal noise
levels are louder than those predicted assuming 10 dB attenuation, NMFS
is requiring Sunrise Wind to implement additional measures to reduce
sound levels such that they do not exceed those modeled assuming 10 dB.
Sunrise Wind is required to conduct either complete or abbreviated SFV
monitoring on all foundation piles installed. Based on all these
reasons, NMFS is not requiring Sunrise Wind to remodel the harassment
zone sizes by adding 3 dB to the source levels and is, instead,
carrying forward the modeling results as presented in the proposed
rule.
Based on this discussion, and given NMFS' consideration of the best
available scientific information including available interim sound
field verification (SFV) reports from other offshore wind construction
projects in the United States, NMFS disagrees with the suggestions made
by the Commission. NMFS has incorporated the best available scientific
information into this final rule, using recent measurements as well as
estimates obtained through JASCO's modeling.
Comment 2: The Commission and other members of the public
recommended NMFS (1) re-estimate and authorize Level A harassment takes
based on modeling results for the worst-case scenario rather than
presuming an arbitrary 80- or 100-percent reduction for mitigation
efficacy and/or a 10-dB sound attenuation for impact pile driving, (2)
re-estimate and authorize Level B harassment takes based on more
conservative assumptions for the pile-driving scenarios that could
occur (including only one monopile or fewer than four pin piles
installed per day), (3) re-estimate the various mortality, Level A
harassment, and Level B harassment zones and numbers of takes based on
0-dB of sound attenuation for UXO detonations and authorize Level A and
B harassment takes, including behavior takes, that could result from
UXO detonations, and (4) increase any Level A or B harassment takes to
mean group size (including updates that reflect the results of more
recent marine mammal surveys in the Rhode Island-
[[Page 45298]]
Massachusetts WEA). Another commenter suggested that the numbers of
takes, particularly with respect to NARW, rely on mitigation methods
that remain unproven.
Response: NMFS disagrees with the Commission that our analysis
should carry forward take estimates based on the worst-case scenario
that assumes no reduction of impacts results from the mitigation and
notes that the Commission did not present any data supporting their
recommendation. As described in the proposed rule, this final rule
reasonably assumes that the mitigation efforts will be effective at
reducing the potential for Level A harassment calculated in the
density-based models. The models do not account for mitigation (except
with respect to assuming attenuation and seasonal restrictions) and,
therefore, it is reasonable to assume the model overestimates Level A
harassment. Further, while the scientific literature documents marine
mammals are likely to avoid loud noises such as pile driving (e.g.,
Brandt et al., 2016, Nowack et al., 2004), avoidance was not
quantitatively considered in the take estimates. However, NMFS
reasonably predicts this natural behavior will further reduce the
potential for Level A harassment.
In the proposed rule, NMFS described the best available science,
which supports the assumption that at least 10dB attenuation can be
reliably achieved using noise attenuation systems such as a double
bubble curtain. The Commission did not provide reason for why they
believe this was an overestimate nor did they suggest an alternative
amount of attenuation NMFS should consider other than zero attenuation.
Other commenters expressed similar support stating that bubble curtains
are not effective for low-frequency cetaceans. NMFS agrees that
attenuation levels vary by frequency band and that bubble curtains
attenuate higher frequency sounds more effectively; however, NMFS
disagrees that lower frequency bands, which are important to consider
when evaluating impacts, are not attenuated at all. The data from
Bellmann (2021), shows that for both single and double bubble curtains,
more than 10 dB of attenuation was achieved for bands as low as 32 Hz.
And while it is true that performance diminishes significantly at lower
frequencies (< 32 Hz), those bands also contain significantly less pile
driving sound and is 16+ dB outside the most susceptible frequency
range for low-frequency cetaceans.
NMFS recognizes that the key to effective mitigation is the ability
to detect marine mammals to trigger such mitigation. Sunrise Wind is
required to undertake extensive monitoring to maximize marine mammal
detection effectiveness. The reduction to the density-based take
estimate appropriately reflects and acknowledges the monitoring
efforts, including the placement of 3 PSOs on the pile driving platform
and dedicated PSOs vessel(s) and PAM.
NMFS agrees with the Commission that there is potential for
behavioral disturbance from a single detonation per day and disagrees
that ``behavior takes'' were omitted and have not been accounted for.
However, the behavioral threshold for underwater detonations identified
by the Commission (5 dB less than the temporary threshold shift (TTS)
threshold) is only applicable to multiple detonations per day. NMFS is
not aware of evidence to support the assertion that animals will have
behavioral responses that would qualify as take to temporally and
spatially isolated explosions at received levels below the TTS
threshold. Accordingly, the current take estimate framework allows for
the consideration of behavioral disturbance resulting from single
explosions specifically if they are exposed above the TTS threshold, as
opposed to the 5 dB lower threshold for behavioral disturbance from
multiple detonations. We acknowledge in our analysis that individuals
exposed above the TTS threshold may also be harassed by direct
behavioral disruption and those potential impacts are considered in the
negligible impact determination. NMFS agrees with the Commission that
the proposed rule did not include some information in Sunrise Wind's
application regarding certain foundation construction scenarios. We
have added that information to this final rule. The distances to
harassment thresholds have not changed from the application and
proposed rule and are presented in this final rule. Take estimates did
not change as a result of including this additional information.
Comment 3: A commenter claimed that the authorized taking by
harassment is not incidental but intentional and that take associated
with soft-starts was not considered in the take analysis.
Response: NMFS' implementing regulations define incidental
harassment, incidental taking, and incidental, but not intentional,
taking as an accidental taking. This does not mean that the taking is
unexpected, but rather it includes those takings that are infrequent,
unavoidable or accidental'' (50 CFR 216.103). NMFS disagrees that the
take that may be authorized under this rulemaking is intentional. The
commenter is also incorrect that the amount of harassment that would be
authorized in a LOA under this final rule does not account for soft-
starts. As described in the Estimated Take section, Sunrise Wind
requested the maximum number of takes generated from three methods:
density-based exposure estimates, group size data, and PSO data, all of
which account for soft starts. Based on the nature of the methods, this
is most evident in the density-based exposure estimates. The hammer
schedules in the application, proposed rule, and this final rule all
account for pile driving that would occur during installation,
including lower hammer energies. Soft starts are simply impact pile
driving at these lower hammer energies. Therefore, the exposure
estimates account for pile driving during soft starts. The other two
take estimate methods (i.e., group size and PSO data) are based on the
number of days of pile driving, which also inherently considers all
pile driving associated with foundation installation for those days.
Comment 4: A commenter requested NMFS provide an explanation for
the differences in assumptions and corresponding differences in take
estimates for the Revolution Wind, LLC (Revolution Wind) and Sunrise
Wind projects provided [Oslash]rsted is the developer for both
projects.
Response: The MMPA indicates that, upon request, NMFS shall issue
the requested incidental take authorization if certain findings are
made. Applicants propose take estimate modeling methodologies, and NMFS
evaluates if the approaches are reasonable and supported. Sunrise Wind,
a 50/50 joint venture between [Oslash]rsted and Eversource Investment,
LLC and Revolution Wind, a subsidiary wholly owned by [Oslash]rsted,
both submitted applications containing the same acoustic modeling and
take estimate approaches for foundation installation, cable landfall
construction, HRG surveys, and UXO/MEC detonation activities. Both
companies applied JASCO's modeling tools to estimate distances to NMFS
harassment isopleths. They also both estimated take from foundation
installation assuming that all impact pile driving occurred in the
highest and second highest density months in their applications (note
that Revolution Wind subsequently assumed all piles would be installed
in the highest density month after reducing the number of foundations
to be installed). For some species, observational data from PSOs aboard
HRG survey vessels or group size data indicated that the density-based
take estimates may be
[[Page 45299]]
insufficient to account for the number of individuals of a species that
may be encountered during the planned activities and, therefore, take
from the density-based exposures were adjusted to account for these
data. While the methodologies are similar, there are differences in the
results of undertaking those methods. The primary differences for take
numbers between the two projects are generated from the scope of work
(e.g., number of piles, amount of HRG survey work planned, number of
UXO/MEC detonations), density estimates, and distances to NMFS
harassment isopleths, which are influenced by both source levels and
transmission loss rates which are site specific. These three factors
strongly influence the take numbers requested and proposed by NMFS to
authorize.
Both applicants assumed mitigation measures (e.g., delay or
shutdown) would result in fewer Level A harassment takes than estimated
from the modeling (no Level A harassment was modeled (or expected) from
HRG surveys or vibratory pile driving for both projects). Collectively,
there are a multitude of reasons why take numbers, both modeled and
ultimately requested, may differ. NMFS evaluates each application
independently. The commenter did not provide evidence that any of the
methodologies or assumptions were flawed. Specific to Sunrise Wind,
NMFS has found that the take authorized under this rule would have a
negligible impact on affected marine mammal species and stocks and has
prescribed mitigation measures that affect the least practicable
adverse impact on marine mammals.
Comment 5: A commenter claimed that NMFS' thresholds are outdated,
primarily because scientific literature demonstrates examples where
behavioral disturbances have been documented where received levels are
lower than 160 dB. Moreover, the commenter suggested that estimating
the extent of Level B take from impact driving using the 160dB
(impulsive) threshold is flawed because an animal may be exposed to
several hours of pile driving per day, which should be considered
continuous, and that, although impulsive at the source, the sound from
impact driving may be received as a continuous source at a distance.
For these reasons, the commenter suggested the proposed rule
underestimates the Level B take and ``zones of impact''; thus, NMFS'
small numbers and negligible impact determination is flawed.
Response: For the reasons described below, NMFS disagrees that the
160-dB threshold for behavioral harassment is not supported by the best
available science and that the small numbers and negligible impact
determinations are flawed based on the use of this threshold in the
take estimate analysis. The potential for behavioral response to an
anthropogenic source can be highly variable and context-specific
(Ellison et al., 2012). While NMFS acknowledges the potential for Level
B harassment at exposures to received levels below 160 dB rms, it
should also be acknowledged that not every animal exposed to received
levels above 160 dB rms will respond in ways constituting behavioral
harassment. There are a variety of studies indicating that contextual
variables play a very important role in response to anthropogenic
noise, and the severity of effects are not necessarily linear when
compared to a received level (RL). Several studies (e.g., Nowacek et
al., 2004 and Kastelein et al., 2012 and 2015) showed there were
behavioral responses to sources below the 160 dB threshold but also
acknowledged the importance of context in these responses. For example,
Nowacek et al. (2004) reported the behavior of five out of six NARW was
disrupted at RLs of only 133-148 dB re 1 [mu]Pa (returning to normal
behavior within minutes) when exposed to an alert signal. However, the
authors also reported that none of the whales responded to noise from
transiting vessels or playbacks of ship noise even though the RLs were
at least as loud and contained similar frequencies to those of the
alert signal. The authors state that a possible explanation for whales
responding to the alert signal and not responding to vessel noise is
due to the whales having been habituated to vessel noise while the
alert signal was a novel sound. In addition, the authors noted
differences between the characteristics of the vessel noise and alert
signal, which may also have played a part in the differences in
responses to the two noise types. Therefore, it was concluded that the
signal itself, as opposed to the RL, was responsible for the response.
DeRuiter et al. (2012) also indicate that variability of responses to
acoustic stimuli depends not only on the species receiving the sound
and the sound source, but also on the social, behavioral, or
environmental contexts of exposure. Finally, behavioral responses
depend on many contextual factors, including range to source, RL above
background noise, novelty of the signal, and differences in behavioral
state (Ellison et al., 2012, Gong et al., 2014). Similarly, Kastelein
et al. (2015) examined behavioral responses of a harbor porpoise to
sonar signals in a quiet pool but stated behavioral responses of harbor
porpoises at sea would vary with context such as social situation,
sound propagation, and background noise levels.
NMFS uses 160 dB (rms) as the received sound pressure level for
estimating the onset of Level B behavioral harassment for impulsive/
intermittent sound sources, and this is currently considered the best
available science while acknowledging that the 160 dB<INF>rms</INF>
step-function approach is a simplistic approach. While it be may true
because of reverberation that impulsive pile driving strikes may
``stretch'' as their sound travels through the environment, we do not
classify these sounds as continuous, like drilling and vibratory pile
driving. NMFS' behavioral harassment thresholds consider instantaneous
exposure to noise and are based on a received level. These thresholds
do not account for duration of exposure, as our PTS onset thresholds
do. Thus, whether an individual was exposed to a few pile driving
strikes or exposed for several hours of pile driving, the 160-dB
threshold would still apply. While it is correct that in practice it
works as a step-function (i.e., animals exposed to received levels
above the threshold are considered to be ``taken'' and those exposed to
levels below the threshold are not), it is in fact intended as a sort
of mid-point of likely behavioral responses, which are extremely
complex depending on many factors including species, noise source,
individual experience, and behavioral context. What this means is that,
conceptually, the function recognizes that some animals exposed to
levels below the threshold will in fact react in ways that
appropriately considered take while others that are exposed to levels
above the threshold will not. Use of the 160-dB threshold allows for a
simplistic quantitative estimate of take while we can qualitatively
address the variation in responses across different received levels in
our discussion and analysis.
Overall, we reiterate the lack of scientific consensus regarding
what criteria might be more appropriate. Defining sound levels that
disrupt behavioral patterns is difficult because responses depend on
the context in which the animal receives the sound, including an
animal's behavioral mode when it hears sounds (e.g., feeding, resting,
or migrating), prior experience, and biological factors (e.g., age and
sex). Other contextual factors, such as signal characteristics,
distance from the source, and signal to noise ratio, may also help
determine response to a given received level of sound. Therefore,
[[Page 45300]]
levels at which responses occur are not necessarily consistent and can
be difficult to predict (Southall et al., 2007; Ellison et al., 2012;
Southall et al., 2021). For example, Gomez et al. (2016) reported that
RL was not an appropriate indicator of behavioral response. Further,
the seminal reviews presented by Southall et al. (2007), Gomez et al.
(2016), and Southall et al. (2021) did not suggest any specific new
criteria due to lack of convergence in the data.
Given that there is currently no concurrence on these complex
issues, NMFS followed its practice at the time of submission and review
of this application in assessing the likelihood of disruption of
behavioral patterns by using the 160 dB threshold. NMFS is currently
evaluating available information towards development of updated
guidance for assessing the effects of anthropogenic sound on marine
mammal behavior. However, undertaking a process to derive defensible
exposure-response relationships, as suggested by Tyack and Thomas
(2019), is complex. The recent systematic review by Gomez et al. (2016)
was unable to derive criteria expressing these types of exposure-
response relationships based on currently available data.
NMFS acknowledges that there may be methods of assessing likely
behavioral responses to acoustic stimuli that better capture the
variation and context-dependency of those responses than the simple 160
dB step-function used here. However, there is no agreement on what that
method should be or how more complicated methods may be implemented by
applicants. NMFS is committed to continuing its work in developing
updated guidance with regard to acoustic thresholds but pending
additional consideration and process, is reliant upon an established
threshold that is reasonably reflective of best available science.
Comment 6: A commenter recommended that NMFS should consider the
best available data regarding NARW abundance in the project area, as
well as the most comprehensive models for estimating marine mammal take
and developing robust mitigation measures.
Response: The MMPA and its implementing regulations require that
incidental take regulations be established based on the best available
information, which does not always mean the most recent information.
NMFS generally considers the information in the most recent U.S.
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments Report
(SAR) (Hayes et al., 2023) to be the best available information for a
particular marine mammal stock because of the MMPA's rigorous SAR
procedural requirements, which includes peer review by a statutorily
established Scientific Review Group. Since publication of the proposed
rule, NMFS has released the draft 2023 Stock Assessment Report
indicating the NARW population abundance is estimated as 340
individuals based on sighting data through December 31, 2021 (89 FR
5495, January 29, 2024). NMFS has used the best available scientific
information in the analysis of this final rule. This new estimate,
which is based on the analysis from Pace et al. (2017) and subsequent
refinements found in Pace (2021), provides the best available, and in
this case most recent, estimate, including improvements to NMFS' right
whale abundance model. NMFS notes this estimate aligns with the 2022
NARW Report Card (Pettis et al., 2022) estimate (340) based on sighting
data through August 2022 but, as described above, that the SARs are
peer reviewed by other scientific review groups prior to being
finalized and published and that the Report Card does not undertake
this process. Based on this, NMFS has considered all relevant
information regarding NARW. The commenters did not cite specific
abundance data sources they recommended NMFS used or reasons why the
science used in NMFS' assessment is not best available. NMFS has relied
on the draft 2023 SAR in this final rule as it reflects the best
available scientific information.
NMFS notes that this change in abundance estimate does not change
the estimated take of NARW or authorized take numbers, nor affect its
ability to make the required findings under the MMPA for Sunrise Wind's
construction activities.
While NMFS cannot require applicants to utilize specific models for
the purposes of estimating take incidental to offshore wind
construction activities, it evaluates the models used to support take
estimates to ensure that they are methodologically sound and
incorporate the best available science. NMFS does require use of the
Roberts et al. (2016, 2023) density data and SARs abundance estimates
for all species, both of which represent the best available science
regarding marine mammal occurrence.
Comment 7: A commenter recommended a prohibition on pile driving,
site assessment, and site characterization activities during times of
highest risk to NARW by extending the seasonal restriction on impact
pile driving to December 1 through April 30, reflecting highest
activity levels of NARW. The commenter further identified that if a
near real-time monitoring system and mitigation protocol for NARW and
other large whale species is developed and scientifically validated,
the system and protocol may be used to dynamically manage the timing of
site assessment and characterization activities to ensure those
activities are undertaken during times of lowest risk for all relevant
large whale species.
Response: NMFS has restricted foundation installation pile driving
from January through April, which represent the times of year when NARW
are most likely to be in the Project Area. However, NMFS recognizes
that the density of whales begins to elevate in December, as suggested
by the commenter. Sunrise Wind has agreed to restrict pile driving in
December to the maximum extent practicable. In this final rule, Sunrise
Wind must not plan and, to the maximum extent practicable, not pile
drive in December, and must seek NMFS approval for December pile
driving. As described in the proposed rule, in any time of year when
foundation installation is occurring, a visual sighting of NARW by
foundation installation PSOs or an acoustic detection within a 10-km
PAM monitoring zone triggers a delay in pile driving commencement or
shutdown. In December, Sunrise Wind is also required to implement
larger mitigation zones that reflect the acoustic modeling results
using a winter sound speed profile (Table 32). With the application of
these enhanced mitigation and monitoring measures in December, impacts
to NARW will be further reduced.
NMFS neither anticipates nor authorizes take of NARW by Level A
harassment (PTS) from HRG survey activities. While NMFS is authorizing
a total of 17 Level B harassment takes of NARW incidental to HRG
surveys over the 5-year effective period of this rulemaking, the
required mitigation will affect the least practicable adverse impact on
the species from this activity. Specifically, the largest modeled Level
B harassment zone size for the sparker (141 m) is already much smaller
than the required separation, clearance, and shutdown distances for
NARW (500 m) and any unidentified large whale must be treated as if it
were a NARW, triggering associated mitigation. Any Level B harassment
that is not avoided is not expected to impact important feeding or
other behaviors that may occur throughout the year in the Project Area
in a manner that poses energetic or reproductive risks for any
individuals.
[[Page 45301]]
The commenter stated that site assessment surveys could injure
NARW; however, they did not provide scientific evidence to support this
claim. As described in this rule, NMFS does not anticipate nor would
authorize injury (i.e., Level A harassment) of NARW incidental to these
surveys. Given the anticipated minimal impacts of the HRG surveys, NMFS
disagrees that additional mitigation measures, including seasonal
restrictions or dynamic management of HRG surveys timing, are
warranted.
Comment 8: The Commission recommends that NMFS expand zone sizes
for foundation installation and base the various mitigation and
monitoring zones, including the minimum visibility zone, on the largest
of the Level A harassment zones in Tables 15 and 16 of the Federal
Register notice.
Response: NMFS has considered each construction scenario in this
final rule as recommended by the Commission. This final rule increased
the clearance and shutdown mitigation zone sizes for scenarios
involving monopiles for marine mammals except for NARW (Table 32). The
NARW clearance and shutdown zones remain ``any distance'' as described
in Table 42 of the proposed rule. The final rule more clearly
distinguishes between the sequential and concurrent installation
scenarios. For example, the proposed rule included large whale (other
than NARW) clearance and shutdown zones for all monopiles installed
equating to 3,700 m in summer and 4,300 m in winter. In this final
rule, the clearance and shutdown zones for sequential monopiling in
summer is 4 km in summer and 4,300 m in winter while the monopile
concurrent and OCS-DC/monopile concurrent clearance and shutdown zone
in summer is 5.3 km in summer and 6.3 km in winter.
NMFS did not increase the minimum visibility zone to the largest
Level A harassment distance modeled, as recommended by the Commission,
as this may result in unnecessary delays to the project. As described
above, models demonstrate that completing a project during a time of
year when a species of concern is less likely to be present is an
effective means by which to reduce the magnitude of impacts (Southall
et al., 2021). In this case, if the largest Level A harassment zones
for all marine mammals (or zones within the low frequency cetacean
hearing group) is used to establish the minimum visibility zone, this
extended zone could unnecessarily delay the project, leading to a
prolonged duration or more days over which construction would occur,
which could result in greater impacts on marine mammals. The minimum
visibility zone in this final rule equates to the largest ER95% for
NARW. The ``OCS-DC only'' scenario zones remained the same as the
proposed rule as these are considered adequately protective.
Comment 9: The Commission recommends that NMFS require Sunrise Wind
to deploy a dual sound attenuation system for UXO detonations and
prohibit Sunrise Wind from conducting UXO detonations when currents are
greater than 2 knots (kn).
Response: In this final rule, NMFS is requiring Sunrise Wind to
deploy a dual sound attenuation system (such as a double bubble
curtain) to meet the noise levels modeled assuming 10-dB attenuation.
As described in the proposed rule and carried forward in this final
rule, NMFS is requiring Sunrise Wind to conduct complete SFV on all
detonations. Further, we are requiring that the bubble curtain be
placed at a distance such that the nozzle hose remains undamaged.
In its letter, the Commission did not provide reasoning or
justification for its recommendation for restricting UXO/MEC detonation
if current speeds are greater than 2 kn. However, the Commission
references its Ocean Wind 1 proposed rule comment letter, which states
that Bellmann (2021) indicated that currents greater than 2 kn led to a
reduction of sound attenuation that cannot be resolved with additional
compressed air or larger distances to the source and that the overall
achieved sound reduction of a big bubble curtain depends significantly
on the configuration and application of the BBC. The Commission
identified that if the configuration and application of the bubble
curtain is not optimized, then sound reduction decreases significantly.
In this case, [Oslash]rsted will have experience deploying bubble
curtains in U.S. waters for two offshore wind projects, and NMFS
anticipates that the double bubble curtain will be optimized. The
Commission did not present evidence that the distances to thresholds
assuming 10 dB attenuation could not be achieved in current speeds over
2 knots; therefore, at this time, NMFS is not requiring UXO/MEC
detonation be limited to times when current speed is 2 kn (2.3 mph) or
less. Sunrise Wind is required to use a dual attenuation device (e.g.,
double bubble curtain) during the 3 UXO/MEC detonations that may occur
and conduct SFV on all detonations. Should SFV determine that the model
underestimated impacts, the mitigation zone sizes would be increased,
and additional attenuation measures added to ensure impacts are not
greater than those analyzed for the next detonation.
Comment 10: Several commenters requested NMFS add to or modify the
vessel strike avoidance mitigation measures contained within the
proposed rule. Specific recommendations included limiting all vessels
to speeds of 10 kn or less at all times with no exceptions, developing
an ``Adaptive Plan'' as an alternative to the 10 kn speed restriction,
requiring Class A AIS, requiring PSOs on all vessels when underway as
opposed to a ``visual observer'' and requiring service vessels to
complement observer coverage with additional monitoring technologies
(e.g., infrared (IR) detection devices for whales and other protected
species, requiring Sunrise Wind to provide a vessel traffic plan,
keeping 500 m away from NARW at all times and 100 m for other large
whale species, requiring that all vessel personnel are trained in
observing and identifying NARW, and requiring each vessel to have a
minimum of 4 PSOs following a two-on, two-off rotation, each
responsible for scanning no more than 180[deg]of the horizon per pile
driving locations). A commenter also claimed that vessel speed
restrictions are not fully mandated or enforced for OSW vessels.
Response: NMFS acknowledges that vessel strikes pose a risk to all
large whales, including NARW and the proposed rule and this final rule
requires a suite of mitigation measures to effect the least practicable
adverse impact from vessels on marine mammals. These measures are more
restrictive than other industrial, commercial, military, and
recreational vessels. All vessel operators must abide by vessel speed
regulations (50 CFR 224.105). All transiting vessels, regardless of
speed or size, are required to have a trained dedicated visual observer
watching for marine mammals. In the event a marine mammal is observed,
the vessel must slow to 10 kn or less or if within separation zones
(500 m for NARW and 100 m for sperm whales and non-NARW), turn away
from and slow engines to neutral. In any Seasonal Management Area
(SMA), Dynamic Management Area (DMA), or Slow Zone (the latter two of
which are voluntary for other vessels), Sunrise Wind must operate
vessels at 10 kn or less. Further, between November 1st and April 30th,
all vessels, regardless of size, must operate port to port
(specifically from ports in New Jersey, New York, Maryland, Delaware,
and Virginia) at 10 kn or less, except for while transiting in
Narragansett Bay or Long Island Sound. Sunrise Wind is also required to
maintain situational
[[Page 45302]]
awareness of marine mammals by monitoring various systems and internal
communication. NMFS has determined it is impracticable for all vessels
to travel 10 kn or less at all times and is not necessary to achieve
the least practicable adverse impact given the mitigation discussed
above.
As described above, in many cases, there are no alternatives to the
10 kt or less speed restrictions. However, NMFS has determined that
under certain conditions, Sunrise Wind vessels could travel at over 10
kts. A commenter has recommended that this ``Adaptive Plan'' be allowed
only if it is proven to be equally or more effective than a 10 kt speed
restriction. NMFS has determined that the monitoring required,
including both direct marine mammal monitoring and situational
awareness monitoring and reporting, affect the least practicable
adverse impact on marine mammals. The commenter did not provide
scientific evidence that the circumstances in which Sunrise Wind
vessels could travel over 10 kts are not effective at avoiding vessel
strikes.
In this final rule, NMFS is requiring that all vessels associated
with Sunrise Wind's activities be equipped with a properly installed,
operational Automatic Identification System (AIS) device and Sunrise
Wind must report all Maritime Mobile Service Identify (MMSI) numbers to
NMFS Office of Protected Resources, thus facilitating monitoring of
vessel speeds. In addition, NMFS maintains an Enforcement Hotline for
members of the public to report violations of vessel speed
restrictions. NMFS does not require PSOs to be onboard every transiting
vessel as it is impracticable due to potential limited space on the
vessels. However, as described in the proposed rule and carried forward
in this final rule, Sunrise Wind must have dedicated visual observers
onboard all vessels with no other concurrent duties. The dedicated
visual observer may be a PSO or a trained crew member.
NMFS described in the proposed rule, and is requiring in this final
rule, that infrared technologies and PAM hydrophone deployments be
available and used before, during, and after pile driving. To ensure
marine mammal detection is maximized, and in response to public
comments, NMFS is now requiring monitoring for marine mammals before,
during, and after foundation installation, and is requiring in this
final rule three on-duty PSOs on both platforms such that each PSO is
responsible for 120-degree coverage. As proposed, this final rule
requires that visual observers must be equipped with alternative
monitoring technology (e.g., night vision devices, infrared cameras) to
monitor clearance and shutdown zones during periods of low visibility
(e.g., darkness, rain, fog, etc.).
NMFS disagrees with the commenter that the final rule and LOA must
include a ``vessel traffic'' plan. The commenter did not provide
details on what this plan should include. Sunrise Wind provided
information pertaining to the types and number of vessels necessary to
construct the project. It is also required to submit a Vessel Strike
Avoidance Plan, which must include, but is not limited to, more detail
on ports used and means by which they would abide by the extensive
measures outlined here. While NMFS acknowledges that vessel strikes can
result in injury or mortality, the implementation of the required
monitoring and mitigation measures would reduce the risk of vessel
strike to levels low enough such that it is considered discountable;
thus, no vessel strike is expected or would be authorized under this
final rule. These measures also ensure the least practicable adverse
impact on species or stocks and their habitat.
Comment 11: A commenter recommended strengthening mitigation
measures for other endangered species and species experiencing UMEs to
minimize take by Level A harassment, indicating the mitigation measures
required by the proposed rule to reduce risk to large whales are
largely designed for NARW and may not be equally efficacious for other
species (e.g., passive acoustics will not be used to trigger mitigation
measures for fin whales).
Response: NMFS disagrees that additional or modified mitigation
measures are necessary to affect the least practicable adverse impact
on marine mammal species or stocks, including those listed under the
ESA and experiencing UMEs. This rule allows a limited number of Level A
harassment takes to be authorized for two ESA-listed species (i.e., fin
whale and sei whale, neither of which are experiencing a UME), two non-
ESA listed species experiencing active UMEs (i.e., humpback whales and
minke whales) and two non-ESA listed species with non-active UMEs with
closure pending (i.e., gray and harbor seals) incidental to foundation
impact pile driving (table 15). A very limited number of seals (n=5)
may also experience PTS from UXO/MEC detonation (table 23). NMFS notes
that these take estimates did not consider mitigation measures other
than seasonal restrictions and 10 dB of sound attenuation. Some
mitigation measures in the proposed rule and this final rule are
centered around NARW because of the species status and general fitness
of individuals. NMFS acknowledges that seasonal closures are based on
NARW densities and the maximum density months for other ESA-listed
species and stocks experiencing UMEs may occur outside of the seasonal
closures (table 12). However, it is neither possible nor practicable to
schedule activities around every species' densities because of the
significant amount of variation and year-round presence of some
species. Other enhanced mitigation for NARW includes delaying or
shutting down pile driving should a NARW be observed at any distance by
a foundation installation PSO or acoustically detected within the PAM
monitoring zone. If clearance and shutdown zones were increased for
other ESA-listed species and marine mammal species experiencing UMEs,
it would result in longer construction time frames, prolonging the time
periods over which marine mammals may be exposed to construction-
related stressors, as well as creating impracticable operational
scenarios for the applicant. It has been modeled and is logical that
projects should be constructed as quickly as possible during times when
the potential for a species of concern to be present is lowest
(Southall et al. 2021). Accordingly, NMFS has determined that the
current clearance and shutdown zones, together with other mitigation
measures, affect the least practicable adverse impact on marine
mammals. Moreover, while some mitigation measures are focused on NARW,
NMFS has determined that the take that may be authorized, which
includes both Level A and Level B harassment, has a negligible impact
on all marine mammal species and stocks and affects the least
practicable adverse impact on marine mammal species or stocks.
Regarding PAM detections, NMFS has clarified in this final rule
that while the PAM system should be designed to maximize detections of
NARW and is not required to have the capability to detect all marine
mammals within the 10km PAM monitoring zone, should another marine
mammal be detected (e.g., a fin whale, which vocalizes within similar
frequencies for which the PAM system would be optimized) within a
clearance or shutdown zone via PAM, mitigation must be applied.
Comment 12: Several commenters recommended that the impacts of
underwater noise be minimized to the fullest extent feasible (e.g.,
select and operate subbottom profiling systems at the lowest source
levels practicable) and that the best commercially available
[[Page 45303]]
technology and methods should be used to minimize sound levels from
piledrivingcoupled with a robust monitoring and reporting program to
ensure compliance. A commenter recommended projects should achieve no
less than 10 dB (SEL) in combined noise reduction and attenuation,
taking as a baseline, projections from prior noise measurements of
unmitigated piles from Europe and North America. Another commenter
recommended a requirement of the implementation of best commercially
available combined (near- and far-field) noise abatement systems
capable of a 15 dB reduction (SEL). A commenter also suggested that
developers must be required to specify the exact equipment to be used
for noise attenuation for proper evaluation of potential impacts.
Response: NMFS, as delegated by the Secretary of Commerce, must
promulgate regulations setting forth mitigation measures affecting the
least practicable adverse impact on marine mammal species or stocks and
their habitat in any issued incidental take authorization (16 U.S.C.
1371(a)(5)(A)(i)(II)). As described in both the proposed rule and this
final rule, NMFS has included requirements for sound attenuation
methods that successfully (evidenced by required sound field
verification measurements) reduce real-world noise levels produced by
impact pile driving of foundation installation to, at a minimum, the
levels modeled assuming 10 dB attenuation. NMFS clarifies that, because
no unattenuated piles may be driven, there is no way to confirm a 10-dB
reduction; rather, in situ SFV measurements will be conducted to ensure
that sound levels are at or below those modeled assuming a 10-dB
reduction. At this time, NMFS is not requiring 15 dB attenuation be
achieved. While data do demonstrate that this is feasible under some
circumstances (e.g., Bellman et al., 2020), the data on the
effectiveness of NAS in the Atlantic for similar size piles is scant.
Preliminary sound measurements from South Fork Wind indicate that with
multiple NAS systems, measured sound levels during impact driving
foundation piles using a 4,000 kilojoules (kJ) hammer are below those
modeled assuming a 10-dB reduction and suggest, in fact, that two
systems may sometimes be necessary to reach the targeted 10-dB
reductions. Therefore, while higher than 10 dB attenuation may be
technically feasible under some circumstances, more data are needed
before assuming a higher level of attenuation is consistently
achievable in all environments.
In addition to the SFV requirements in the proposed rule,
consistent with the Biological Opinion, NMFS has added to this final
rule the requirement that Sunrise Wind must conduct abbreviated SFV
monitoring (consisting of a single acoustic recorder placed at an
appropriate distance from the pile) on all foundation installations for
which the complete SFV monitoring, as required in the proposed rule, is
not carried out. NMFS is requiring that these SFV results must be
included in the weekly reports. Any indications that distances to the
Level A harassment and Level B harassment thresholds for whales are
exceeded must be addressed by Sunrise Wind, including an explanation of
factors that contributed to the exceedance and corrective actions that
were taken to avoid exceedance on subsequent piles.
Since the proposed rule, Sunrise Wind has identified the noise
attenuation systems that will be used during foundation installation
(i.e., a double bubble curtain and AdBm resonator). While knowing the
exact system is not required to evaluate the potential impacts to
marine mammals as NMFS conservatively carries forward the proposed
system with the largest potential impact into the estimate take
analysis, NMFS believes the commenter's request to specific the noise
attenuation system has been satisfied.
Comment 13: A commenter recommended NMFS should expand the NARW PAM
and visual clearance zones to 5,000 m from the pile during impact and
vibratory pile driving; expand the PAM shutdown zone (exclusion zone)
to 2,000 m during vibratory and impact pile driving; expand the
clearance zone during HRG to 1,000 m; and have a soft-start/ramp-up
whenever a shutdown during HRG occurs.
Response: The foundation installation impact pile driving PAM
monitoring zone for NARW is 10 km and any detection within this zone
would trigger a delay or shutdown of pile driving. Clearance or shut
down for NARW would also occur if a whale is visually detected at any
distance by foundation installation PSOs. These requirements are more
protective than those recommended by the commenter. While the minimum
visibility zone is construction scenario-specific (table 32) but less
than the recommended 5,000 m, it is based on the largest modeled Level
A harassment ER95% for NARW. Any larger zone could result in delays to
the project that could adversely impact marine mammals by extending
construction. Further, this is the minimum distance that must be
visually cleared, and NMFS anticipates that on many occasions, the
ability to detect NARW beyond this zone will be obtainable.
Vibratory pile driving would occur at the cable landfall location
to install cofferdam sheet piles and goal posts. The distances to the
Level A harassment thresholds from this activity are very small (i.e.,
less than 200 m for all marine mammal species). While the distance to
the Level B harassment threshold is not small (i.e., approximately
9.7km for all marine mammal species), clearing 5,000 km before
beginning vibratory driving is not practical. The commenter did not
provide scientific information supporting their recommendation for such
a large clearance zone. The commenter also recommended a PAM clearance
zone of 2 km during vibratory pile driving; however, PAM is not
required during this activity given it is an activity that would be
very limited in duration (a maximum of 12 days), produces relatively
low noise levels, and is expected to result in a limited number of
takes. NMFS has determined that the current clearance zones, along with
other mitigation measures, affect the least practicable adverse impact
on marine mammal species or stocks and their habitat.
As described in the proposed rule and this final rule for HRG
surveys, the required 500-m shutdown zone for NARW exceeds the modeled
distance to the largest 160-dB Level B harassment isopleth (141 m
during sparker use) by a large margin, minimizing the likelihood that
they will be harassed in any manner by this activity. Commenters do not
provide additional scientific information for NMFS to consider to
support their recommendation to expand the zones to 1,000 m. Given that
these surveys are relatively low impact, and that NMFS has prescribed a
precautionary NARW clearance and shutdown zone that is larger (500 m)
than the largest estimated Level B harassment zone (141 m), NMFS has
determined that an increase in the size of the zones to 1,000 m is not
necessary to affect the least practicable adverse impact.
Finally, a soft-start to impact pile driving and ramp-up to HRG
surveys was included in the proposed rule and is included in this final
rule. The rule specifies that if an acoustic source is shut down for a
period longer than 30 minutes, then all clearance and ramp-up
procedures must be initiated. However, if an acoustic source is shut
down for reasons other than mitigation (e.g., mechanical difficulty)
for less than 30 minutes, it may be activated again without ramp-up
only if PSOs have
[[Page 45304]]
maintained constant observation and no additional detections of any
marine mammal occurred within the respective shutdown zones.
Comment 14: A commenter asserted an independent review of
mitigation measures should be required due to limitations associated
with visual monitoring and PAM.
Response: The MMPA does not require an independent review of
mitigation measures. It does require notice and opportunity for public
comment (16 U.S.C. 1371(a)(5)(A)(i)). The public comment period is a
means by which the public (i.e., independent reviewers) are able to
provide NMFS with mitigation measure recommendations supported by
scientific evidence that NMFS takes into consideration when finalizing
the rulemaking.
Comment 15: A commenter recommended shutdown should be initiated if
weather or other conditions limit the range of observation.
Response: The comment refers to a 500 m shutdown zone for NARW;
therefore, NMFS assumes the recommendation is referring to HRG surveys,
which are a low impact activity. As described in the proposed rule and
this final rule, PSOs are required to monitor the shutdown zone during
operations. During periods of low visibility, alternative monitoring
technology (i.e., infrared or thermal cameras) must be used to monitor
these zones. This final rule clarifies that when the shutdown zones
become obscured for brief periods (i.e., no more than 30 minutes) due
to inclement weather, survey operations may continue (i.e., no shutdown
is required) so long as no marine mammals have been detected. Further,
the shutdown requirement is waived for certain genera of small
delphids. As noted above, take of marine mammals from HRG surveys is
limited overall, take by Level B harassment only is expected to occur
only within a small area in close proximity to the vessel, and no Level
A harassment is expected to result from exposure to the surveys even in
the absence of mitigation. There is a low likelihood that short periods
of obscured visibility might potentially coincide with a marine mammal
entering the shutdown zone and a shutdown not occurring. While such an
event may result in a higher-level exposure than would occur if the
shutdown happened, such an exposure would still not be expected to
result in a Level A take and would be brief and not change the number
of takes or our evaluation of their likely effects, which are expected
to be comparatively minor. Additionally, the frequent delay and/or
cessation of HRG surveys creates operational challenges and
impracticalities for applicants. Altogether, the required measures
affect the least practicable adverse impact on the affected species.
Comment 16: For HRG survey activities, a commenter questioned why
the NARW is given an exclusion zone for ramp up and ramp down
procedures equal to 500 meters, while all other baleen whales that hear
in the exact same profile, are only given an exclusion zone range from
100-141 m, even though they hear equally as well as the NARW.
Response: While baleen whales have similar hearing capabilities,
given the baseline status and condition of NARW, NMFS determined that
enhanced mitigation measures are necessary to affect the least
practicable adverse impact on the species. The largest Level B
harassment zone for HRG acoustic sources is 141 m. Extending clearance
zones for other baleen whales from 100 m to 500 m could result in HRG
surveys extending over longer time periods. Extending the time over
which surveys are conducted could potentially lead to adverse impacts
on marine mammals (e.g., Southall et al., 2021). In consideration of
the size of the Level B harassment zone and the potential consequences
of extending survey time, NMFS has determined that the mitigation
measures for HRG surveys effect the least practicable adverse impact on
non-NARW baleen whales.
Comment 17: A commenter recommended prohibiting all planned
activities on days or periods where reduced visibility conditions
occur, as well as at night due to concerns over the ability to monitor
the clearance zone and increased risk of vessel strikes in the case
that various construction vessels are operating at night. Another
commenter recommended if, under rare circumstances pile driving must
proceed after dark for safety reasons, a summary of the frequency of
these exceptions be publicly available to ensure they are the exception
and not the norm for the project.
Response: NMFS acknowledges the limitations inherent in visual
detection of marine mammals at night. In order for Sunrise Wind to
conduct nighttime pile driving activities, it must submit and NMFS must
approve a Nighttime Monitoring Plan that reliably demonstrates the
efficacy of its night vision methods. In this final rule, NMFS has
clarified that this includes a description of how Sunrise Wind will
monitor pile driving activities during reduced visibility conditions
(e.g., rain, fog) and at night, including proof of the efficacy of
monitoring devices (e.g., mounted thermal/infrared camera systems,
hand-held or wearable night vision devices NVDs, spotlights) in
detecting marine mammals over the full extent of the required clearance
and shutdown zones. All impact pile driving activities must have visual
monitoring paired with PAM, increasing the likelihood that NARW and
opportunistically, other marine mammals, will be detected. NMFS
emphasizes that there are benefits to completing the pile driving
activities in a shorter total amount of time, in that some number of
marine mammals (i.e., those that might intersect the much larger Level
B harassment zone) would be exposed to fewer overall days of pile
driving noise and potentially a smaller magnitude or severity of
behavioral disturbance as a result given repeated exposures would be
minimized. Therefore, NMFS has determined the current mitigation
measures affect the least practicable adverse impact on marine mammals
and their habitat.
Sunrise Wind is also required to submit a Vessel Strike Avoidance
Plan, which NMFS will also review in consideration of the vessel strike
avoidance monitoring requirements, including the technology it would
use to monitor for marine mammals at night and the effectiveness of
that technology. NMFS notes any vessel strike would be unlawful, and
Sunrise Wind is required to immediately report the incident to NMFS,
cease activities, and work with NMFS to determine the best course of
action.
NMFS does not plan to make the weekly or monthly reports publicly
available; however, it will make the final reports available, which
must summarize all of the information contained in the weekly and
monthly reports.
The proposed rule and this final rule do not restrict the timing of
HRG survey activities. There is no evidence that mortality or Level A
harassment is an outcome of HRG survey noise exposure, the Level B
harassment zones are small (i.e., no more than 141 m), and HRG survey
PSOs are required to use alternative technology to monitor the
mitigation zones at night. Therefore, the mitigation zones are able to
be effectively monitored at night. Further, ramp-up may occur at
nighttime if appropriate visual monitoring has occurred with no
detections of marine mammals in the 30 minutes prior to beginning ramp-
up. The commenter did not provide justification for why, with the use
of two PSOs and alternative detection technology, the mitigation
[[Page 45305]]
zones cannot be effectively monitored. Furthermore, restricting the
ability of the applicant to begin operations only during daylight hours
could result in the applicant failing to collect the data they have
determined is necessary within the specific timeframe and,
subsequently, may necessitate the need to conduct additional surveys in
the future across additional days. No Level A harassment is expected to
result from exposure to HRG equipment, even in the absence of
mitigation, given the characteristics of the sources planned for use
(supported by the very small estimated Level A harassment zones; i.e.,
<36.5 m (119.8 ft) for all sources).
Regarding Level B harassment, any potential impacts from HRG survey
noise exposure are expected to be limited to short-term, minor (e.g.,
slight avoidance) behavioral responses. In consideration of the effects
of the activity on marine mammals, the fact PSOs would utilize
alternative technology at night, the potential unintended consequences
of the measures as proposed by the commenters, NMFS has determined that
the HRG mitigation measures affect the least practicable adverse impact
on marine mammals and their habitat and no additional restrictions are
warranted.
Comment 18: The Commission recommends that in the final rule, NMFS
should: (1) specify which model-estimated zones (i.e., acoustic ranges,
exposure ranges, mitigation zones, monitoring zones) and which metrics
(i.e., flat Rmax, flat R95%) should be compared to the in situ measured
Level A and B harassment zones; (2) specify which type of in situ Level
A harassment zone (i.e., acoustic or exposure ranges) should be
calculated; (3) require Sunrise Wind to conduct additional in situ
measurements for monopiles that are not represented by the previous
three locations (i.e., substrate composition, water depth) or by the
hammer energies and numbers of strikes needed to install a pile in a
given day or number of piles installed in a given day; and (4) require
Sunrise Wind to deploy a minimum of three hydrophones for SFV during
impact pile driving of monopiles and two hydrophones and one pressure
transducer for SFV during UXO/MEC detonations. The Commission also
recommends that NMFS require Sunrise Wind to determine (1) root-mean-
square SPL (SPLrms) and single-strike SEL (SELs-s) source levels and
(2) ranges to (a) mortality, (b) Level A harassment based on slight
lung injury, slight gastro-intestinal (GI) injury, and permanent
threshold shift (PTS), and (c) Level B harassment based on temporary
threshold shift (TTS) and behavior. The also recommended NMFS require
Sunrise Wind to include in the interim SFV reports (1) number of
strikes for impact pile driving, (2) the type(s) and location(s) of the
sound attenuation systems, (3) SELcum for impact pile driving and UXO
detonations, and (4) ranges to (a) Level A harassment (PTS for impact
pile driving and UXO detonations) and (b) Level B harassment (TTS for
UXO detonations and behavior for impact pile driving and UXO
detonations). In the final SFV reports, the Commission recommended
Sunrise Wind include (1) the impulse metric (in Pa-sec) for UXO
detonations, (2) ranges to Level A harassment (PTS) and Level B
harassment (behavior) for impact pile driving, (3) ranges to mortality,
Level A harassment (slight lung injury, slight GI injury, and PTS), and
Level B harassment (TTS and behavior) for UXO detonations, (4) source
levels at 10 m during wind turbine operations, (5) received levels at
50 m, 100 m, and 250 m from the wind turbine during operations, and (6)
operational parameters (i.e., direct drive/gearbox information, turbine
rotation rate), sea state conditions, and any nearby anthropogenic
activities when monitoring operational sound.
Response: NMFS agrees with most of the Commission's recommendations
on reporting and have added metrics recommended in this final rule
where they were not included or unclear in the proposed rule. The
following provides a summary of those recommendations NMFS does not
agree with or where NMFS has provided alternative measures. NMFS is not
at this time requiring rms source levels as those can be deduced from
the SEL levels. NMFS is also not specifying the distances at which
operational noise be measured as recommended by the Commission but will
assess the proposal by the developer in their SFV plan. In this final
rule, NMFS is requiring Sunrise Wind conduct abbreviated SFV on all
piles, which is more than is recommended by the Commission. In
addition, for complete SFV, NMFS is requiring four recorders (each
equipped with two hydrophones) to be used as well as an additional
recorder at a 90 degrees (total of 10 hydrophones), which is well above
that recommended by the Commission. Sunrise Wind is also required in
this final rule to measure pressure during all UXO/MEC detonations with
a pressure transducer.
Comment 19: The Commission recommends that NMFS allow for public
comment on Sunrise Wind's PAM Plan prior to issuing any final rule;
require wind energy applicants to submit a PAM plan and SFV plans prior
to the agency publishing any proposed rule; ensure that any PAM plan
include, at a minimum, information on the minimum number, type (e.g.,
moored, drifting, or towed), location, bandwidth/sampling rate,
estimated acoustic detection range, or sensitivity of the hydrophones
or the detection software (e.g., PAMGUARD) that would be used; and
discuss with Sunrise Wind whether the operator would use vector sensors
in addition to hydrophones to enhance detections, particularly of those
vocalizations that may be drowned out by the hammer strikes and
resulting reverberation.
Response: Due to other concurrent permitting processes and
acknowledging the need for flexibility and project-specific
implementation, NMFS disagrees these Plans must be submitted prior to
promulgating the final rule. The purpose of the Plans is for the
developer to provide to NMFS details on how they would satisfy the
criteria identified in the rule. These criteria are available for
public review and comment. NMFS does not specify the Commission's
reporting recommendations; however, it does require a description of
all proposed PAM equipment, procedures, and protocols, including
evidence that vocalizing NARW will be detected within the clearance and
shutdown zones, as well as how the proposed passive acoustic monitoring
must follow standardized measurement, processing methods, reporting
metrics, and metadata standards for offshore wind. Sunrise Wind's
responses to these requirements will address the Commission's
recommendations.
Comment 20: Commenters recommended that NMFS should expand the
visual monitoring (PSO) and acoustic monitoring (PAM) requirements for
the project. They recommended that PSO staffing levels should be
increased to a minimum of four PSOs on each monitoring platform, with
at least two on duty at all times, and be supplemented with drones
during periods of darkness or poor visibility. They also recommended
PAM should be required during vibratory pile driving, and HRG surveys;
have a minimum detection range of 10,000 m during pile driving; and be
undertaken from a vessel other than the pile driving vessel or from a
stationary unit to avoid the hydrophone being masked by construction
related noise. Finally, the commenters recommended that visual and
acoustic monitoring should begin 60 minutes prior to vibratory pile
driving.
[[Page 45306]]
Response: Regarding the number of PSOs, NMFS notes that the
proposed rule required a minimum of four PSOs actively observing marine
mammals before, during, and after (specific times described below) the
installation of monopiles (two on the pile driving platform and two on
a secondary PSO vessel). In light of other public comments regarding
monitoring, NMFS has increased this requirement to 3 on-duty PSOs per
vessel platform for a minimum of six on-duty PSOs monitoring before,
during, and after foundation installation impact pile driving.
NMFS has expanded the visual and acoustic monitoring requirements
in this final rule and has established a 10 km PAM monitoring zone for
NARW (and opportunistically other marine mammals) during foundation
impact pile driving and the PAM system be at least 1 km from the pile
driving vessel. In this final rule, NMFS has increased the number of
on-duty PSOs on the pile driving vessel from two to three. NMFS notes
that the proposed rule and this final rule limit the number of
consecutive PSO watch hours and, therefore, Sunrise Wind must ensure it
has enough PSOs on staff to meet on-duty requirements. NMFS is not
requiring drones to be used at this time and the commenters did not
provide information supporting the recommendation that they be used
when considering the extensive PSO monitoring required.
NMFS is not requiring PAM during HRG surveys and vibratory pile
driving and the commenters do not provide additional scientific
information for NMFS to consider to support their recommendation to
require PAM during these activities. NMFS disagrees that this measure
is warranted during HRG surveys because it is not expected to be
effective for use in detecting the species of concern given the noise
from the vessel because the flow noise, and the cable noise are in the
same frequency band and will mask the vast majority of baleen whale
calls. Vessels produce low-frequency noise, primarily through propeller
cavitation, with main energy in the 5-300 Hz frequency range. Source
levels range from about 140 to 195 decibel (dB) re 1 [mu]Pa
(micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), depending on
factors such as ship type, load, and speed, and ship hull and propeller
design. Studies of vessel noise show that it appears to increase
background noise levels in the 71-224 Hz range by 10-13 dB (Hatch et
al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM systems
employ hydrophones towed in streamer cables approximately 500 m behind
a vessel. Noise from water flow around the cables and from strumming of
the cables themselves is also low frequency and typically masks signals
in the same range. Experienced PAM operators (Thode et al., 2017)
emphasized that a PAM operation could easily report no acoustic
encounters, depending on species present, simply because background
noise levels rendered any acoustic detection impossible. The same
report stated that a typical eight-element array towed 500 m behind a
vessel could be expected to detect delphinids, sperm whales, and beaked
whales at the required range but not baleen whales due to expected
background noise levels (including seismic noise, vessel noise, and
flow noise).
While NMFS agrees that PAM can be an important tool for augmenting
detection capabilities in certain circumstances (e.g., foundation
installation), its utility in further reducing impacts during HRG
survey activities and vibratory pile driving is limited. For HRG
surveys, the area expected to be ensonified above the Level B
harassment threshold is relatively small (a maximum of 141 m); this
reflects the fact that the source level is comparatively low and the
intensity of any resulting impacts would be lower level and, further,
it means that inasmuch as PAM will only detect a portion of any animals
exposed within a zone, the overall probability of PAM detecting an
animal in the harassment zone is low (particularly because of flow
noise masking vocalizations). Together, these factors support the
limited value of PAM for use in reducing take for activities/sources
with smaller zones. Additionally, PAM is only capable of detecting
animals that are actively vocalizing, while many marine mammal species
vocalize infrequently or during certain activities, which means that
only a subset of the animals within the range of the PAM would be
detected (and potentially have reduced impacts). Further, localization
and range detection can be challenging under certain scenarios. For
example, odontocetes are fast moving and often travel in large or
dispersed groups which makes localization difficult while porpoises and
delphinid echolocation clicks are high frequency with limited detection
ranges.
The only vibratory pile driving that would occur is during
installation and removal of sheet piles at the cofferdam site and pier
pile installation at Smith Point County Park, the latter of which is
not expected to result in take of marine mammals. Vibratory
installation of sheet piles is a relatively quiet pile installation
method when compared to impact pile driving with lower impacts and
would occur over a short durations (i.e., approximately one month
intermittently). The use of PAM is not typically required during
similar coastal construction pile driving projects, as PSOs are
sufficient to monitor for marine mammals. This work would also occur in
shallow water; therefore, any marine mammals should be reliably
detected within 30 minutes prior to pile driving when PSO monitoring
would begin as animals would not be diving to depth that require longer
dive times. Further, the commenters did not provide scientific evidence
suggesting 30 minutes is not an adequate amount of time to detect
marine mammals to enact mitigation, where applicable. Therefore, NMFS
is not requiring 60 minutes of monitoring prior to beginning cable
landfall pile driving as it has determined it affects the least
practicable adverse impact.
Given that the effects to marine mammals from the types of HRG
surveys and vibratory pile driving authorized are expected to be
limited to low-level, behavioral harassment even in the absence of
mitigation and the cost and impracticability of implementing a full-
time PAM program, NMFS has determined the current requirements for
visual monitoring are sufficient to effect the least practicable
adverse impact on the affected species or stocks and their habitat
during these activities.
Comment 21: A commenter suggested that NMFS should improve data
transparency for the reporting measures by requiring that all reports
and data be accessible to the public; require immediate reporting of
all visual and acoustic detections of NARW and dead/injured/entangled
marine mammals, if possible, to the appropriate authority but no later
than the end of the protected species observer's shift; and require
reporting to NMFS and the public whenever an exemption was taken to
implementing a mitigation measure (e.g., shutdown did not occur due to
safety concerns).
Response: The commenter's recommendations to report all visual and
acoustic detections of NARW and any dead, injured, or entangled marine
mammals to NMFS are consistent with the proposed rule and this final
rule. NMFS recognizes the potential for intermittent communication
issues at sea and these issues may last longer than a maximum PSO shift
(i.e., four hours). Therefore, NMFS is requiring these reports be made
as soon as possible but no later than 24 hours.
Neither the MMPA nor its implementing regulations require NMFS
[[Page 45307]]
to make monitoring reports publicly available. However, it is NMFS long
standing practice to make final incidental take authorization
monitoring reports available to the public via our website. In both the
proposed rule and this final rule, NMFS requires Sunrise Wind to submit
annual marine mammal monitoring reports (which include documenting
instances where allowable exemptions were taken) and final SFV
monitoring reports; the final versions of these reports will be posted
on NMFS' website). NMFS also requires weekly and monthly reporting;
however, these reports are a means by which to check compliance with
the rule. NMFS does not intend to make these publicly available.
Further, as NARW sightings are reported by Sunrise Wind, they will be
made publicly available on WhaleMap (<a href="https://whalemap.org/whalemap.html">https://whalemap.org/whalemap.html</a>) while acoustic detections of NARW and other large whale
species will be available to the public on NOAA's Passive Acoustic
Cetacean Map website (<a href="https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map">https://www.fisheries.noaa.gov/resource/data/passive-acoustic-cetacean-map</a>).
Comment 22: A commenter recommended NMFS should set more frequent
reporting requirements for NAS and require independent compliance
evaluators.
Response: In addition to the SFV reporting included in the proposed
rule for complete SFV, this final rule requires Sunrise Wind to conduct
abbreviated SFV on all foundation piles for which complete SFV is not
conducted with frequent reporting in weekly reports. Frequent SFV
reporting will allow NMFS to evaluate Sunrise Wind's compliance with
the need to reduce distances to NMFS harassment isopleths to at or
below those modeled assuming 10 dB attenuation. NMFS is not requiring
independent compliance evaluators. These reports will be reviewed by
NMFS staff with specialized expertise.
Comment 23: A commenter asserted the use of PSOs and PAM is not
sufficient or effective, particularly for NARW and calves, as well as
during UXO detonations and construction of multiple and adjacent
projects and requested the final rule detail the effectiveness of PAM
for detecting NARW, including mothers and calves, during pile driving
and UXO detonation occurring simultaneously with other projects.
Response: The commenter did not provide any scientific evidence
that visual monitoring for NARW is not effective and therefore, is not
supported. Regarding the assertion that PAM is also not effective, the
commenter cited Parks et al. (2019). As evident from the title of the
paper, ``Acoustic crypsis in communication by NARW mother-calf pairs on
calving grounds'', all data collected to support the findings from that
paper were from calving grounds off the coasts of Georgia and Florida.
Habitat use and age classes are different between calving ground and
southern New England, which hosts older animals and those engaged in
foraging and socialization, making findings in the referenced paper not
applicable to the Sunrise Wind project area. Furthermore, there is
ample scientific evidence to support PAM is an effective tool for
monitoring for NARW (e.g., Davis et al., 2017, Van Parijs et al.
(2021)) with recent literature indicating PAM was able to detect NARW
in the Massachusetts and Rhode Island Wind Energy Areas monitored,
including where the Sunrise Wind's Lease Area is located on, in certain
months of the year, a daily basis (Davis et al. 2023). Together, visual
and PAM approaches are well understood to provide best results when
combined together (e.g., Barlow and Taylor, 2005; Clark et al., 2010;
Gerrodette et al., 2011. For these reasons, NMFS finds that the suite
of visual and acoustic monitoring measures in the proposed rule and
carried forward in this final rule are based on the best available
scientific information and are effective at detecting NARW.
Comment 24: A commenter requested an increase in the frequency of
information review for adaptive management to occur on a quarterly
basis, that these quarterly reports be made publicly available, and for
NMFS develop a mechanism to undertake these reviews on an ad hoc basis
if a serious issue is identified.
Response: Regarding the recommendation that NMFS have a mechanism
in place to undertake review and adaptive management on an ad hoc basis
if a serious issue is identified, there are no timing restrictions in
the adaptive management provisions and therefore, NMFS may undertake
review and adaptive management actions at any time under the
regulations, as written. Regarding the recommendation to increase the
frequency of information review, Sunrise Wind is required to submit
weekly, monthly, and annual reports that NMFS will review in a timely
manner and may act on pursuant to the adaptive management provisions at
any time and, therefore, a separate specific quarterly review is
unnecessary.
Comment 25: A commenter recommended that sound source validation
reports of field measurements must be evaluated by NOAA Fisheries prior
to additional piles being installed and be made publicly available and
that SFV be on the first pile installed and from a random sample of
piles throughout the construction period.
Response: NMFS notes that, as proposed, this final rule requires
that no unmitigated piles can be installed and that SFV is required for
piles to ensure that measured sound levels do not exceed those modeled
assuming 10 dB of attenuation. NMFS acknowledges the importance of
transparency in the reporting process and plans to make all final
annual SFV reports available on our website.
Comment 26: A commenter requested that NMFS: (1) explain whether or
not Level B necropsies will be conducted on all animals that may wash
ashore during construction activities to examine for auditory injury
and/or lung and gastrointestinal injury; (2) how or if those results
will be made public and available in a timely manner, if such injury is
discovered if or how this would be attributed to any particular project
or offshore wind construction activity; and (3) what steps NMFS would
take as a result.
Response: The MMPA established the Marine Mammal Health and
Stranding Response Program (MMHSRP). It coordinates emergency responses
to sick, injured, distressed, or dead seals, sea lions, dolphins,
porpoises, and whales. The MMHSRP works with volunteer stranding and
entanglement networks as well as local, tribal, state, and Federal
Government agencies to coordinate and conduct emergency responses to
stranded or entangled marine mammals. The networks respond, when safe
and feasible, to document and recover carcasses. It does not and cannot
respond to every stranded marine mammal, and it is not responsible for
disposing of carcasses. The type of examination conducted varies and
depends on availability of resources, location, carcass accessibility,
and the decomposition state. A necropsy report, when written, includes
data which are compiled over several weeks to months and then analyzed
for a possible cause of death determination and findings. National and
Regional summaries of stranding statistics are available at: <a href="https://www.fisheries.noaa.gov/resource/publication-database/marine-mammal-health-and-stranding-response-program-reports">https://www.fisheries.noaa.gov/resource/publication-database/marine-mammal-health-and-stranding-response-program-reports</a>. NMFS may modify these
regulations and the LOA based on new information it considers the best
available science. If this science indicates the takings allowed under
these regulations may be having more than a negligible impact, NMFS
must
[[Page 45308]]
suspend or withdraw the LOA after notice and opportunity for public
comment.
Comment 27: Several commenters disagreed with NMFS' negligible
impact determination, particularly for NARW. Comments claimed that NMFS
did not: (1) consider the imperiled population status of NARWs; (2)
evaluate the cumulative effects of all projects (e.g., offshore wind
construction and operational noise and site characterization surveys
and baseline urbanized background levels of ambient noise which result
in stress); (3) meaningfully examine the effects of the loss of
communication space on marine mammals and, further, seems to
misapprehend the spatial and temporal scope of the effects; (4)
consider that any effect to the small number of breeding females can
adversely affect fecundity and imperil the species; and (5) consider
whether abandonment of habitat that was designated with the express
purpose of preventing vessel strikes would push the species further
into a vessel traffic corridor, thereby elevating the risk to the
species nor evaluated all the risks to NARW by habitat displacements as
sublethal take has can a measurable effect due to the small population.
Response: NMFS is required to authorize the requested incidental
take if it finds the total incidental take of small numbers of marine
mammals by U.S. citizens ``while engaging in that (specified)
activity'' within a specified geographic region during the 5-year
period (or less) will have a negligible impact on such species or stock
and, where applicable, will not have an unmitigable adverse impact on
the availability of such species or stock for subsistence uses (16
U.S.C. 1371(a)(5)(A)). Negligible impact is defined as ``an impact
resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effect on annual rates of recruitment or
survival'' (50 CFR 216.103). Consistent with the preamble of NMFS'
implementing regulations (54 FR 40338, September 29, 1989), the impacts
from other past and ongoing anthropogenic activities are factored into
the baseline, which is used in the negligible impact analysis. Here,
NMFS has factored into its negligible impact analysis the impacts of
other past and ongoing anthropogenic activities via their impacts on
the baseline (e.g., as reflected in the density/distribution and status
of the species, population size and growth rate, and other relevant
stressors).
The preamble of NMFS' implementing regulations also addresses
cumulative effects from future, unrelated activities. Such effects are
not considered in making the negligible impact determination under
section 101(a)(5) of the MMPA. NMFS considers: (1) cumulative effects
that are reasonably foreseeable when preparing a National Environmental
Policy Act (NEPA) analysis; and (2) reasonably foreseeable cumulative
effects under section 7 of the ESA for ESA-listed species, as
appropriate. Accordingly, NMFS has adopted and reviewed BOEM's EIS and
as part of its inter-agency coordination. This EIS addresses cumulative
impacts related to the Project and substantially similar activities in
similar locations. Cumulative impacts regarding the promulgation of the
regulations and issuance of an LOA for construction activities planned
by Sunrise Wind, have been adequately addressed in the adopted EIS that
supports NMFS' determination that this action has been appropriately
analyzed under NEPA. Separately, the cumulative effects of the Project
on ESA-listed species, including the NARW, were analyzed under section
7 of the ESA when NMFS engaged in formal inter-agency consultation with
NOAA's Greater Atlantic Regional Fisheries Office (GARFO). The
Biological Opinion for the Project determined that NMFS' promulgation
of the rulemaking and issuance of an LOA for construction activities,
individually and cumulatively, are likely to adversely affect, but not
jeopardize, listed marine mammals.
NMFS disagrees that its negligible impact determination is flawed
or not supported. NMFS fully disclosed the imperiled status of NARW in
the Description of Marine Mammals in the Area of Specified Activity
section of the proposed rule. The proposed rule, as well as this final
rule by reference, fully explains the impacts to NARW is expected to be
limited to low-level behavioral harassment (e.g., temporary avoidance
or cessation of foraging). The proposed rule also described the
potential effects of behavioral disturbance on marine mammal fitness
and that, based on the best available science, behavioral disturbance
resulting from Sunrise Wind's activities is not expected to impact
individual animals' health or have effects on individual animals'
survival or reproduction, thus no detrimental impacts at the population
level are anticipated. The commenters do not provide scientific
evidence that suggests otherwise. Specifically, the commenters did not
provide evidence that any effect to a breeding female would result in
reduced fecundity.
Commenters suggested NMFS did not meaningfully evaluate loss of
communication space; however, the Effects on Marine Mammals and Their
Habitat section in the proposed rule contained an analysis on the
impacts of masking both in general and from the specified activities.
NMFS acknowledges that whales may temporarily avoid the area where
the specified activities occur. However, NMFS does not anticipate,
based on the best available science, that whales will abandon their
habitat, as suggested by a commenter, or be displaced in a manner that
would result in a higher risk of vessel strike, and the commenter does
not provide evidence that either of these effects should be a
reasonably anticipated outcome of the specified activity. The primary
activity that is anticipated to result in temporary avoidance of the
otherwise used habitat is foundation installation impact pile driving.
Not only would this activity be limited to times of year when NARW
presence is low, pile driving would be intermittent, and pile driving
would only occur for a limited time (i.e., approximately 348 hours plus
the installation of an OCS-DC in one day) over the course of two years.
Together, these factors further reduce the likelihood that this species
would be in close enough proximity to the activity to engage in
avoidance behavior to the degree it would move into an area of risk
(which would be closer to shore) that it could be struck by another
vessel.
Comment 28: Commenters questioned the validity of NMFS' small
numbers analysis on the basis that the numbers do not account for the
cumulative take numbers from previous, ongoing, or potential projects.
One commenter also requested NMFS clarify the definition of and
thresholds for a small numbers determination.
Response: NMFS has provided a reasoned approach to small numbers,
as described in the final rule, ``Taking Marine Mammals Incidental to
Geophysical Surveys Related to Oil and Gas Activities in the Gulf of
Mexico'' (86 FR 5322 at 5438, April 19, 2021). Utilizing that approach,
NMFS has made the necessary small numbers finding for all affected
species and stocks in this case (Small Numbers section of this preamble
for more detail). Neither the MMPA nor our implementing regulations
require the small numbers analysis to consider take from previous,
ongoing, or potential projects.
[[Page 45309]]
Comment 29: Commenters suggested that NMFS failed to account for
the cumulative (or additive) impacts on marine mammal species in the
Sunrise Wind analysis and that NMFS should evaluate the cumulative
impacts of ongoing and future OSW projects rather than evaluating
projects individually. They provide that NMFS must consider the total
number of takes proposed to be authorized across all wind projects and
must fully consider the discrete effects of each activity and the
cumulative effects of the suite of approved, proposed, and potential
activities on marine mammals, including NARWs, and ensure that the
cumulative effects are not excessive before issuing an LOA.
Response: Neither the MMPA nor NMFS' implementing regulations call
for consideration of the take resulting from other specified activities
in the negligible impact analysis. The preamble to NMFS' implementing
regulations states, in response to comments, that the impacts from
other past and ongoing anthropogenic activities are to be incorporated
into the negligible impact analysis via their impacts on the baseline
(54 FR 40338, September 29, 1989). Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline (e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors). The final rule for the MMPA implementing regulations also
addressed public comments regarding cumulative effects from future,
unrelated activities (54 FR 40338, September 29, 1989). There, NMFS
stated that such effects are not considered in making findings under
section 101(a)(5) concerning negligible impact. In this case, this
incidental take regulation (ITR), as well as other ITRs currently in
effect or proposed within the specified geographic region, are
appropriately considered an unrelated activity relative to the others.
The ITRs are unrelated in the sense that they are discrete actions
under section 101(a)(5)(A) of the MMPA issued to discrete applicants.
Section 101(a)(5)(A) of the MMPA requires NMFS to make a determination
that the take incidental to a ``specified activity'' will have a
negligible impact on the affected species or stocks of marine mammals.
NMFS' implementing regulations require applicants to include in
their request a detailed description of the specified activity or class
of activities that can be expected to result in incidental taking of
marine mammals (50 CFR 216.104(a)(1)). Thus, the ``specified activity''
for which incidental take coverage is being sought under section
101(a)(5)(A) is generally defined and described by the applicant. Here,
Sunrise Wind was the applicant for the ITR, and NMFS is responding to
the specified activity as described in that application and making the
necessary findings on that basis.
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated: (1) that it would consider cumulative
effects that are reasonably foreseeable when preparing a National
Environmental Policy Act (NEPA) analysis; and (2) that reasonably
foreseeable cumulative effects would also be considered under section 7
of the ESA for listed species, as appropriate (54 FR 40338, September
29, 1989). Accordingly, NMFS has adopted an EIS written by BOEM and
reviewed by NMFS as part of inter-agency coordination. This EIS
addresses cumulative impacts related to Sunrise Wind and substantially
similar activities in similar locations. Cumulative impacts regarding
the promulgation of the regulations and issuance of a LOA for
construction activities, such as those planned by Sunrise Wind, have
been adequately addressed under NEPA in the adopted EIS that supports
NMFS' MMPA decision. Separately, the cumulative effects of Sunrise Wind
on ESA-listed species, including NARW, was analyzed under section 7 of
the ESA when NMFS engaged in formal inter-agency consultation with
GARFO. The Biological Opinion for Sunrise Wind determined that NMFS'
promulgation of the rulemaking and issuance of a LOA for construction
activities associated with leasing, individually and cumulatively, are
likely to adversely affect, but not jeopardize, listed marine mammals.
Comment 30: Several commenters claimed the request for an ITA
should be denied alleging the specified activities kill marine mammals,
and some commenters suggested that the ongoing whale UMEs, including
the whale deaths occurring in the winter of 2022-2023, are linked with
ongoing offshore wind survey work (i.e., HRG surveys). One commenter
claimed the burden is on NMFS to prove, with evidence, that there is no
association between HRG surveys and whale injuries, including
``rectified diffusion'' deaths, or otherwise assume that offshore wind
activity has contributed to these deaths. A commenter also asserted
that the activities covered by the ITR and associated LOA are
reasonably likely to result in Level A take of NARWs that are not
covered by the authorization's terms.
Response: Neither the proposed rule nor this final rule allow
mortality or serious injury of marine mammals to be authorized. The
best available science indicates that the anticipated impacts from the
specified activities potentially include avoidance, cessation of
foraging or communication, TTS and PTS, stress, masking, etc. (as
described in the Effects of the Specified Activities on Marine Mammals
and their Habitat section in the proposed rule). NMFS emphasizes that
there is no evidence that noise resulting from offshore wind
development-related specified activities would cause marine mammal
strandings and that there is no evidence linking recent large whale
mortalities and currently ongoing offshore wind activities. The
commenters offer no such evidence or other scientific information to
substantiate their claim. This point has been well supported by other
agencies, including BOEM and the Marine Mammal Commission (Marine
Mammal Commission Newsletter, Spring 2023).
There is an ongoing UME for humpback whales along the Atlantic
coast from Maine to Florida, which includes animals stranded since
2016, and NMFS provides further information on the humpback UME in the
humpback whale subsection in the Description of Marine Mammals in the
Specific Geographic Region section of this final rule.
Partial or full necropsy examinations were conducted on
approximately half of the whales that recently stranded along the U.S.
east coast. Necropsies were not conducted on other carcasses because
they were too decomposed, not brought to land, or stranded on protected
lands (e.g., National and State parks) with limited or no access. Of
the whales examined (roughly 90), about 40 percent had evidence of
human interaction (i.e., ship strike or entanglement). Vessel strikes
and entanglement in fishing gear are the greatest human threats to
large whales. The remaining 50 necropsied whales either had an
undetermined cause of death (due to a limited examination or
decomposition of the carcass) or had other causes of death including
parasite-caused organ damage and starvation. The best available science
indicates that only Level B harassment, or disruption of behavioral
patterns (e.g., avoidance), may occur as a result of Sunrise Wind's HRG
surveys. NMFS emphasizes that there is no credible scientific evidence
available suggesting that mortality and/or serious injury is a
potential outcome of the planned survey activity. More
[[Page 45310]]
information about interactions between offshore wind energy projects
and whales can be found at: <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales">https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/frequent-questions-offshore-wind-and-whales</a>. The proposed rule and this final rule state that no take of
NARW by Level A harassment, mortality, or serious injury was requested
or proposed for authorization (see the Estimated Take and Negligible
Impact Analysis and Determination sections), and they are not expected
based on the best available science.
One commenter cited literature as evidence that seismic surveys in
the mid to low frequency range can injure, cause decompression sickness
(i.e., the bends), and cause rectified diffusion in whales. The
Fernandez (2005) paper cited refers to pathology results from
necropsies conducted on beaked whales involved in a mass stranding
event in the Canary Islands following high intensity military training
exercises involving numerous surface warships and several submarines
and mid-frequency tactical sonar activities. NMFS acknowledges the
effects of these activities described by the commenter are known;
however, the activities in that paper are not analogous to HRG surveys
that would be conducted by Sunrise Wind to construct the Project, and
the information presented by the commenter is not applicable due to
many factors (e.g., pile driving is stationary, versus the sound
sources cited, and HRG surveys utilize a much lower source level).
Comment 31: Members of the public recommended NMFS consider the
impacts of structure presence and operations, including those from
operational noise on marine mammals as well as ocean mixing and
vibrations on phytoplankton, zooplankton, and the food chain. One
commenter suggested that NMFS did not evaluate the long-term
operational and maintenance impacts of the project on marine mammals
and ignored the best available science demonstrating behavioral impacts
to marine mammals from operational turbines; therefore, NMFS' small
numbers and negligible impact findings are arbitrary and capricious.
Response: In the proposed rule, NMFS considered the impacts to
marine mammals from operational noise and to their habitat, including
prey, from the presence of structures and operations based on the best
available science. In this final rule, NMFS has supplemented that
analysis with new scientific information that has become available
regarding these issues since publishing the proposed rule. This new
information does not change our findings. The commenter did not provide
scientific evidence that suggests the analysis within the proposed rule
was unsupported. NMFS has fully evaluated the potential impacts of both
issuing this final rule on marine mammals over the five-year effective
period of this rulemaking and the potential impacts from long-term
operations via the Biological Opinion. NMFS refers the reader to the
Effects of the Specified Activities on Marine Mammals and Their Habitat
section and the Negligible Impact Determination section in the proposed
and in this final rule for further details.
Comment 32: The Commission recommends that NMFS ensure that all
underlying documentation used in the agency's analyses, including PSO
reports from previous authorizations, are publicly available on its
website prior to publishing any Federal Register notice for advance
notice of proposed rulemakings or the proposed rules themselves.
Response: Although not required by the MMPA or its implementing
regulations, NMFS posts all final reports on our website when approved
by NMFS. For reports used in its analysis, NMFS agrees that all
underlying documentation should be readily available to the public for
review along with the proposed rule. While it anticipates the timing is
such that in most cases, NMFS will have a final report posted prior to
publishing a proposed rule. In more unusual circumstances, in
particular if a report is not due, but some preliminary information is
available, it may not be possible to make the report publicly available
at the same time as the proposed rule. Therefore, NMFS agrees having
underlying documentation to support our analyses available for public
review is the goal; however, it recognizes that this may not be
practicable in all cases. NMFS does publish a Notice of Receipt as
required per NMFS' implementing regulations inviting public input on an
adequate and complete application for rulemaking. However, this stage
does not include NMFS' analysis or preliminary determinations, and
therefore, there is no analysis for which supporting documentation is
needed. In general, NMFS aims to post relevant documentation as early
as possible.
Comment 33: The Commission understands and supports the
Administration's push for wind energy development along the Atlantic
coast but is concerned the push is compromising the quality of
documents at the sake of adhering to timelines and milestones. The
Commission recommends that NMFS prioritize conducting quality control
and general oversight of reviewing the preambles to and the proposed
and final rules prior to publication in the Federal Register.
Response: NMFS is committed to producing accurate and
scientifically-defensible documents that support our management
decisions for incidental take authorizations and other actions and will
continue to prioritize quality control as appropriate, given available
resources.
Comment 34: A commenter requested that NMFS' consideration of LOAs
for offshore wind developers be applied equitably across industries and
that there be a clear threshold for OSW-related takes regionally and
across project phases.
Response: NMFS carefully reviews models and take estimate
methodology to authorize a number of takes, by species and manner of
take that is a likely outcome of the Project. Sunrise Wind is required
to submit frequent reports, which identify the number of takes applied
to the Project.
Fishing impacts and NMFS assessment of them generally center on
entanglement in fishing gear, which is a very acute, visible, and
severe impact (i.e., mortality or serious injury). In contrast, the
impacts incidental to the specified activities are primarily acoustic
in nature and limited to Level A harassment and Level B harassment,
there is no anticipated or authorized serious injury or mortality that
the fishing industry could theoretically be held accountable for. Any
take resulting from the specified activities would not be associated
with take authorizations related to commercial fisheries. Neither the
MMPA nor NMFS' implementing regulations require NMFS to analyze impacts
to other industries (e.g., fisheries) from issuance of an ITA pursuant
to section 101(a)(5)(A) of the MMPA. NMFS notes that the Sunrise Wind
Final EIS assesses the impacts of both BOEM's and NMFS' actions (i.e.,
approving Sunrise Wind's activities and authorizing the associated take
of marine mammals, respectively) on the human environment, including to
fisheries, and NMFS considered the analysis, as appropriate, in the
final decisions under the MMPA. The impacts of commercial fisheries on
marine mammals and incidental take for said fishing activities are
managed separately from those of non-commercial fishing activities
(e.g., offshore wind site characterization surveys) under section 118
of the MMPA.
[[Page 45311]]
Comment 35: A commenter expressed concern about how the presence of
wind turbines will impact NMFS' ability to conduct low-altitude (i.e.,
1,000 m) marine mammal assessment aerial surveys, thus impacting NMFS'
ability to continue using current methods to fulfill its mission of
precisely and accurately assessing and managing protected species.
Response: NMFS and BOEM have collaborated to establish the
``Federal Survey Mitigation Strategy for the Northeast U.S. Region''
(Hare et al., 2022). This interagency effort is intended to guide the
development and implementation of a program to mitigate impacts of wind
energy development on fisheries surveys. For more information on this
effort, please see: <a href="https://repository.library.noaa.gov/view/noaa/47925">https://repository.library.noaa.gov/view/noaa/47925</a>.
Comment 36: A commenter questioned the consequences and
implications of a scenario in which the authorized incidental take
levels are exceeded.
Response: In the unlikely scenario that Sunrise Wind exceeds their
authorized take levels, any further take would be unauthorized and,
therefore, prohibited under the MMPA. Sunrise Wind could request
additional incidental take of marine mammals from their specified
activities. This would require NMFS to reanalyze its small numbers and
negligible impact determinations and may require reinitiation of the
BiOp and supplemental NEPA analysis depending on the specific facts.
Comment 37: A commenter recommended that, consistent with the
requirement to achieve ``the least practicable impact on such species
or stock and its habitat,'' the LOA must include conditions for the
survey and construction activities that will first avoid adverse
effects on NARW in and around the area and then minimize and mitigate
the effects that cannot be avoided.
Response: The MMPA requires that we include measures that will
affect the least practicable adverse impact on the affected species and
stocks and, in practice, NMFS generally agrees with the approach
suggested (i.e., the rule should include conditions for the
construction activities that will first avoid adverse effects on NARW
in and around the Project Area where practicable and then minimize the
effects that cannot be avoided) and has generally considered mitigation
in that way. NMFS does not agree that it ``must'' consider mitigation
in this exact manner. NMFS has determined that this final rule meets
this requirement to effect the least practicable adverse impact and
described our rationale in the final rule. The commenter does not make
any specific recommendations of measures to add to the rulemaking.
Comment 38: A commenter requested that, due to rapid changes for
NARW and the need to react quickly to protect the species, NMFS should
issue 5-year ITRs but should limit LOAs to 1-year period instead of the
proposed 5-year LOA.
Response: While NMFS understands the reasoning behind the
commenters' suggestion, it does not think this is necessary because the
final rule includes requirements for annual reports (in addition to
weekly and monthly requirements) to support frequent evaluation of the
activities and monitoring results, and the final rule includes an
Adaptive Management provision that allows NMFS to make modifications
and adjustments to the measures found in the issued LOA if and when new
information that supports necessary modifications becomes available.
Because of this, NMFS will issue a single, 5-year LOA and modify it if
and when necessary at any point during the effective period of the
regulations.
Comment 39: A commenter recommended that NMFS should only issue the
ITR and LOA after pending regulatory rules with possible effects to
marine mammals are finalized (e.g., BOEM's renewable energy
modernization rule, NMFS vessel speed rule); the results of the UME
investigations in the area are completed and available; and research
and studies on the impacts of offshore wind development on marine
mammals are completed as baseline information is lacking. Another
commenter recommended no ITRs should be issued until a programmatic
analysis of offshore wind is conducted.
Response: The MMPA requires NMFS to evaluate the effects of the
specified activities in consideration of the best scientific evidence
available and to issue the requested incidental take authorization if
it makes the necessary findings (16 U.S.C. 1371(a)(5)(A)(i)). The MMPA
does not allow NMFS to delay issuance of the requested authorization on
the presumption that new information or new regulations will become
available in the future. If new information becomes available in the
future, NMFS may modify the mitigation and monitoring measures in an
LOA issued under these regulations through the adaptive management
provisions. Furthermore, NMFS is required to withdraw or suspend an LOA
if, after notice and public comment unless an emergency exists, it
determines the authorized incidental take may be having more than a
negligible impact on a species or stock. NMFS has duly considered the
best scientific evidence available in its promulgation of the final
rule and made the required findings.
Changes From the Proposed to Final Rule
Since the publication of the proposed rule in the Federal Register
on February 10, 2023 (88 FR 8996), NMFS has made changes, where
appropriate, that are reflected in the preamble text of this final rule
and in the final regulatory text. These changes are briefly identified
below, with more information included in the indicated sections of the
preamble to this final rule.
Changes to Information Provided in the Preamble
The information found in the preamble of the Proposed Rule was
based on the best available information at the time of publication.
Since publication of the Proposed Rule, new information has become
available, which has been incorporated into this final rule as
discussed below.
The following changes are reflected in the Description of Marine
Mammals in the Area of Specified Activities section of the preamble to
this final rule:
Given the release of NMFS' draft 2023 SARs (Hayes et al. 2024),
NMFS has updated the population estimate used in the proposed rule
(Hayes et al., 2022) for the NARW (Eubalaena glacialis) from 368 to 340
and the total mortality/serious injury (M/SI) amount from 7.7 to 27.2.
This increase is due to the inclusion of undetected M/SI (whereas 7.7
accounted only for detected M/SI).
Given the availability of new information, NMFS has made updates to
the UME summaries for NARW, humpback whales, minke whales, and phocid
seals (pinnipeds).
The following changes are reflected in the Estimated Take section
the preamble to this final rule:
Since the proposed rule was published, Sunrise Wind has reduced the
number of foundations to be installed from 94 WTGs to 87 (see Reduced
WTG Foundations report). Therefore, the exposure estimates and take
numbers from this activity have been slightly reduced to account for
this reduction in activity. While the number of authorized takes
resulting from foundation installation have decreased, the underlying
modeling and methodologies to estimate take have not changed since the
proposed rule.
[[Page 45312]]
Sunrise Wind submitted adjusted take numbers for Level B harassment
associated with HRG surveys as part of the Reduced WTG Foundations
report. Due to the reduction on WTGs, the amount of HRG survey
tracklines have been reduced. This change to the project results, in
some cases, in a reduction of the number of takes that would be
authorized under this rule. However, species in which take by Level B
harassment for HRG was based on mean group size (i.e., Atlantic spotted
dolphin, pilot whales, Risso's dolphin, and sperm whale) were
originally calculated by halving the mean group size between years 1
and 2 rather than accounting for the total mean group size for each
year of HRG survey activity. This correction to using total mean group
size for each year resulted in minor increased take to these species.
The total takes by Level B harassment for blue whale was corrected
to 8 from 7 due to a summation error (other tables in the Estimated
Take section of the proposed rule included correct take numbers for
blue whales and correctly added up to 8 total takes).
The following changes are reflected in the Mitigation, and
Monitoring and Reporting section in the preamble to this final rule:
Based, in part, on recommendations received from the public, NMFS
has revised the minimum visibility, shutdown, and clearance zone sizes
for foundation installation (table 32). To simplify the various
schedules, NMFS determined that three installation scenarios warranted
different zone sizes assuming 10 dB attenuation: (1) sequential
(Schedule 1 and 2); (2) concurrent (Schedule 3 and 4); and (3) OCS-DC
only (Schedule 5) (see table 32). In addition, the minimum visibility
zone is now based on the Level A harassment zone sizes for NARW under
the three different construction scenarios. When Schedules were
considered together (e.g., Schedules 1 and 2 comprise the
``sequential'' scenario), the largest zone of the two schedules
considered was used to develop mitigation zone sizes (see table 32).
For OCS-DC only (Schedule 5), the clearance and shutdown zone sizes
were set as the largest distance for the low frequency cetaceans (i.e.,
fin whale).
NMFS has increased the PSO and PAM clearance and shutdown zone
sizes based on the largest Level A harassment threshold distance for
low frequency cetaceans (i.e., fin whale) based on the construction
scenario and season. NMFS increased the PAM shutdown zone from 3.7 km
(summer) and 4.3 km (winter) for NARW and now requires Sunrise Wind to
shutdown foundation pile driving if a NARW is acoustically detected
within the 10 km PAM monitoring zone.
Due to the different zone sizes based on the three construction
scenarios, NMFS has included a requirement that Sunrise Wind must
select the most conservative (largest) zone sizes each day depending on
which construction scenario is planned. If the real-world construction
scenario for that day occurs that would have had smaller zone sizes
than what was planned at the start of the day, Sunrise Wind may not
decrease to the smaller zone sizes for that day (i.e., real-world
concurrent installation does not occur though was planned at the start
of the day and, instead, only sequential installation occurred; Sunrise
Wind must still implement the larger concurrent installation zone
sizes).
NMFS has included mitigation and monitoring zones specific to the
different UXO/MEC charge weights, rather than a single zone size
assuming only the largest charge weight, as [Oslash]rsted has provided
evidence to NMFS that they can reliably identify UXO/MEC charge weights
in the field since publication of the proposed rule.
Recognizing the extensive, frequent, and situational monitoring
data and report requirements, NMFS clarified the language describing
the annual or biennial review of data to inform adaptive management
decisions to indicate that adaptive management decisions may be made at
any time, as new information warrants it.
Changes in the Regulatory Text
We have made the following changes to the regulatory text, which
are reflected, as appropriate, throughout this final rule and
described, as appropriate, in the preamble.
The following change is reflected in Sec. 217.310 (Specified
activity and specified geographical region):
For clarity and consistency, we revised two paragraphs in Sec.
217.310 Specified activity and specified geographical region of the
regulatory text to fully describe the specified activities and
specified geographical region.
The following change is reflected in Sec. 217.312 (Permissible
Methods of Taking):
NMFS added pneumatic hammering of casing pipes to the list of
permissible methods of taking by Level B harassment as it was
inadvertently excluded from the regulatory text but fully described and
analyzed in preamble.
The following changes are reflected in Sec. 217.314 (Mitigation
requirements) and the associated Mitigation section of the preamble to
this final rule:
For clarity and consistency, NMFS has reorganized and revised, as
applicable, the paragraphs in Sec. 217.314 (Mitigation requirements).
Based on a recommendation by a commenter, NMFS added a requirement
that all project vessels must utilize AIS.
NMFS corrected the limitation on the number of monopiles that could
be installed per day from 3 to 4 per day to accurately reflect the
scenarios analyzed by Sunrise Wind in their application and as
described in table 16 of the proposed rule.
Given that NARW density in the Project Area increases by an order
of magnitude from November to December and based on public comment,
NMFS is including a requirement that foundation impact pile driving
should be avoided in December and may only occur when unforeseen
circumstances would otherwise preclude completion of the foundation
installation for the project in a given year, and only with prior
approval by NMFS. NMFS has also clarified that when a clearance zone is
over 5 km, an aerial platform must be used unless Sunrise Wind
determines an aerial platform is not practical and, in such case, an
additional vessel must be used.
NMFS updated the vessel strike avoidance measures to now specify
that the mitigation measure apply to all Project vessels, and that if a
NARW is detected, all vessels, not only crew transfer vessels, must
travel at 10 kn (11.5 mph) or less. In addition, the regulatory text
clarifies that this measure applies only when other speed restrictions
are not in place (e.g., no DMA, SMA, or Slow Zone is established). NMFS
has also modified a vessel strike measure that had indicated a vessel
should slow to 10 kts if it came within an identified separation zone.
The measure was changed to indicate that vessels should steer away from
slow, and shift engines to neutral if the separation zone is violated.
NMFS also clarified the situations under which a safety exemption may
be taken from the vessel strike avoidance measures.
For the Smith Point County Park temporary pier, NMFS now includes
the required mitigation measures to avoid take by Level A harassment or
Level B harassment, as Sunrise Wind has not requested take for these
activities. These mitigation and monitoring measures are the same as
required of cable landfall. With the addition of these measures, NMFS
concurs with Sunrise Wind that take is not expected to occur.
The following changes are reflected in the Sec. 217.315
(Monitoring and reporting
[[Page 45313]]
requirements) and the associated Monitoring and Reporting section of
the preamble to this final rule:
For clarity and consistency, NMFS has reorganized and revised, as
applicable, the paragraphs in Sec. 217.315 (Monitoring and reporting
requirements).
NMFS updated the process for obtaining NMFS approval for PSO and
PAM Operators and have clarified education, training, and experience
necessary to obtain NMFS' approval.
NMFS added a requirement to have at least three PSOs on the pile
driving vessel and any dedicated PSO vessel (or equivalent coverage)
rather than two PSOs, as was originally described in the proposed rule.
Based on the best available science and a recommendation by the
Commission, NMFS added a requirement that increases the time that PAM
data must be reviewed prior to all UXO/MEC detonations from 1 to 24
hours (except in emergency cases where the 24-hour delay before the
detonation occurred would create risk to human safety).
Based on a recommendation by the Commission, NMFS added a
requirement that a double big bubble curtain must be placed at a
distance that would avoid damage to the nozzle holes during all UXO/MEC
detonations. NMFS also added a requirement that a pressure transducer
must be used during all UXO/MEC detonations.
Since publishing the proposed rule, Sunrise Wind has finalized
their noise attenuation systems. NMFS modified the NAS requirement
stating that Sunrise Wind must use a double bubble curtain with AdBm
Helmholz resonator during monopile installation and, at minimum, a
double bubble curtain during jacket foundation pin pile installation.
Consistent with the requirements included in the Sunrise Wind
Biological Opinion, NMFS added additional details regarding complete
SFV requirements and added a requirement that abbreviated SFV
(consisting of a single recorder with a bottom and mid-water column
hydrophone) must be conducted on every foundation for which complete
monitoring is not conducted. NMFS also added details regarding SFV
reporting requirements. NMFS is now requiring Sunrise Wind to deploy
two dedicated PSOs vessels to monitor the clearance and shutdown zones
prior to and during impact pile driving installation of monopile
foundations. In addition to the three on-duty PSOs on the pile driving
platform, three on-duty PSOs must be deployed on each of the dedicated
PSO vessels to monitor for marine mammals. Similarly, NMFS is now
requiring that Sunrise Wind deploy at least three on-duty PSOs, instead
of two on-duty PSOs, on each observation platform for all detonations.
Based on consideration of the Commission recommendation, NMFS has
added additional specified reporting requirements for SFV conducted
during UXO/MEC detonation and operations and clarified the general SFV
reporting metrics to align with the Commission's comments.
Given the new tools that NMFS has made available since publishing
the proposed rule, NMFS updated how Sunrise Wind should electronically
submit NARW detection (visual and acoustic) reports.
Description of Marine Mammals in the Area of Specified Activities
As noted in the Changes From the Proposed to Final Rule section,
since publication of the proposed rule (88 FR 8996, February 10, 2023),
updates have been made to the abundance estimate for NARW and the UME
summaries of multiple species. These changes are described in detail in
the sections below. Otherwise, the Description of Marine Mammals in the
Area of Specified Activities section has not changed since the
publication of the proposed rule in the Federal Register (88 FR 8996,
February 10, 2023).
Sections 3 and 4 of Sunrise Wind's application summarize available
information regarding status and trends, distribution and habitat
preferences, and behavior and life history of the potentially affected
species (Sunrise Wind, 2021). NMFS fully considered all of this
information, and refers the reader to these descriptions in the
application. Additional information regarding population trends and
threats may be found in NMFS' SARs at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>, and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website at: <a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>.
Table 2 lists all species or stocks for which take is authorized
under this final rule and summarizes information related to the species
or stock, including regulatory status under the MMPA and ESA and
potential biological removal (PBR), where known. PBR is defined as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population as described in
NMFS' SARs (16 U.S.C. 1362(20)). While no mortality is anticipated or
allowed to be authorized under this rulemaking, PBR and annual serious
injury and mortality from anthropogenic sources are included here as
gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in
table 2 are the most recent available data at the time of publication
which can be found in NMFS' 2023 draft SARs (Hayes et al., 2024),
available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>.
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Of the marine mammal species and/or stocks with geographic ranges
that include the western North Atlantic OCS (table 5 in Sunrise Wind
ITA application), 23 are not expected to be present or are considered
rare or unexpected in the project area based on sighting and
distribution data. Therefore, they are not discussed further beyond the
explanation provided here. The following species are not expected to
occur in the project area due to the location of preferred habitat
outside the project area based on the best scientific information
available: Dwarf and pygmy sperm whales (Kogia sima and K breviceps),
northern bottlenose whale (hyperoodon ampullatus), cuvier's beaked
whale (Ziphius cavirostris), four species of Mesoplodont beaked whales
(Mesoplodon densitostris, M. europaeus, M. mirus, and M. bidens),
killer whale (Orcinus orca), false killer whale (Pseudorca crassidens),
pygmy killer whale (Feresa attenuate), short-finned pilot whale
(Globicephalus macrohynchus), melon-headed whale (Peponocephala
electra), Fraser's dolphin (Lagenodelphis hosei), white-beaked dolphin
(Lagenorhynchus albirotris), pantropical spotted dolphin (Stenella
attenuata), Clymene dolphin (Stenella clymene), striped dolphin
(Stenella coeruleoalba), spinner dolphin (Stenella longirostris),
rough-toothed dolphin (Steno bredanensis), and the northern migratory
coastal stock of common bottlenose dolphins (Tursiops truncatus
truncatus). The following species may occur in the project area but at
such low densities that take is not
[[Page 45316]]
anticipated: hooded seal (Cystophora cristata) and harp seal
(Pagophilus groenlandica).
There are two pilot whale species, long-finned (Globicephala melas)
and short-finned (Globicephala macrorhynchus), with distributions that
overlap in the latitudinal range of the Project Area (Hayes et al.,
2003; Roberts et al., 2016). Because it is difficult to differentiate
between the two species at sea, sightings, and thus the densities
calculated from them, are generally reported together as Globicephala
spp. (Roberts et al., 2016; Hayes et al., 2023; Hayes et al., 2024).
However, based on the best available information, short-finned pilot
whales occur in habitats that are both further offshore on the shelf
break and further south than the Project Area (Hayes et al., 2020).
Therefore, NMFS assumes that any take of pilot whales would be of long-
finned pilot whales. Similarly, in the Western North Atlantic, there
are two morphologically and genetically distinct common bottlenose
morphotypes: the Western North Atlantic Northern Migratory Coastal
stock and the Western North Atlantic Offshore stock. The Western North
Atlantic Offshore stock is primarily distributed along the outer shelf
and slope from Georges Bank to Florida during spring and summer and has
been observed in the Gulf of Maine during late summer and fall (Hayes
et al. 2020), whereas the Northern Migratory Coastal stock is
distributed along the coast between southern Long Island, New York, and
Florida (Hayes et al. 2018). Given their distribution, only the
offshore stock is likely to occur in the Project Area and is the only
stock included in Sunrise Wind's application.
A detailed description of the species likely to be affected by the
Project, including brief introductions to the species and relevant
stocks as well as available information regarding population trends and
threats, and information regarding local occurrence, were provided in
the proposed rule (88 FR 8996, February 10, 2023). Since that time, a
new draft SAR (Hayes et al., 2024) has become available for the NARW.
Estimated abundance for the species declined from 368 to 340 and annual
M/SI increased from 8.1 to 27.2. This large increase in annual serious
injury/mortality is a result of NMFS including undetected annual M/SI
in the total annual M/SI. The NARW population remains in decline, as
described in the North Atlantic Right Whale species section below. NMFS
is not aware of any additional changes in the status of the species and
stocks listed in table 2; therefore, detailed descriptions are not
provided here. Please refer to the proposed rule for these descriptions
(88 FR 8996, February 10, 2023).
Since the publication of the proposed rule, the following updates
have occurred to the below species in regard to general information or
their active UMEs.
North Atlantic Right Whale
In August 2023, NMFS released its draft 2023 SARs, which updated
the population estimate (N<INF>best</INF>) of NARW from 368 to 340
individuals and the annual M/SI value from 8.1 to 37.2 due to the
addition of estimated undetected mortality and serious injury, as
described above, which had not been previously included in the SAR. The
population estimate is equal to the North Atlantic Right Whale
Consortium's 2022 Annual Report Card, which identifies the population
estimate as 340 individuals (Pettis et al., 2023). Elevated NARW
mortalities have occurred since June 7, 2017, along the U.S. and
Canadian coast, with the leading category for the cause of death for
this UME determined to be ``human interaction,'' specifically from
entanglements or vessel strikes. Since publication of the proposed
rule, the number of animals considered part of the UME has increased.
As of April 8, 2024, there have been 39 confirmed mortalities (i.e.,
dead, stranded, or floaters), 1 pending mortality, and 34 seriously
injured free-swimming whales for a total of 74 whales. The UME also
considers animals with sublethal injury or illness (i.e.,
``morbidity''; n=51) bringing the total number of whales in the UME
from 71 to 122. More information about the NARW UME is available online
at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
Humpback Whale
Since January 2016, elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine to Florida. This event was
declared a UME in April 2017. Partial or full necropsy examinations
have been conducted on approximately half of the 212 known cases (as of
January 5, 2024). Of the whales examined (approximately 90), about 40
percent had evidence of human interaction either from vessel strike or
entanglement. While a portion of the whales have shown evidence of pre-
mortem vessel strike, this finding is not consistent across all whales
examined and more research is needed. NOAA is consulting with
researchers that are conducting studies on the humpback whale
populations, and these efforts may provide information on changes in
whale distribution and habitat use that could provide additional
insight into how these vessel interactions occurred. More information
is available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
Since December 1, 2022, the number of humpback strandings along the
mid-Atlantic coast (from North Carolina to New York) has been elevated.
In some cases, the cause of death is not yet known. In others, vessel
strike has been deemed the cause of death. As the humpback whale
population has grown, they are seen more often in the Mid-Atlantic.
These whales may be following their prey (small fish) which were
reportedly close to shore in the 2022-2033 winter. Changing
distributions of prey impact larger marine species that depend on them
and result in changing distribution of whales and other marine life.
These prey also attract fish that are targeted by recreational and
commercial fishermen, which increases the number of boats and amount of
fishing gear in these areas. This nearshore movement increases the
potential for anthropogenic interactions, particularly as the increased
presence of whales in areas traveled by boats of all sizes increases
the risk of vessel strikes.
Minke Whale
Since January 2017, a UME has been declared based on elevated minke
whale mortalities detected along the Atlantic coast from Maine through
South Carolina. As of January 5, 2024, a total of 164 minke whales have
stranded during this UME. Full or partial necropsy examinations were
conducted on more than 60 percent of the whales. Preliminary findings
have shown evidence of human interactions or infectious disease in
several of the whales, but these findings are not consistent across all
of the whales examined, so more research is needed. This UME has been
declared non-active and is pending closure. More information is
available at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
Phocid Seals
Since June 2022, elevated numbers of harbor seal and gray seal
mortalities have occurred across the southern and central coast of
Maine. This event was declared a UME in July 2022 but has since closed.
The UME Investigative Team reviewed necropsy, histopathology, and
diagnostic findings.
[[Page 45317]]
They determined the UME was attributed to spillover events of the
highly pathogenic avian influenza H5N1 virus from infected wild birds
to harbor and gray seals. An ongoing HPAI H5N1 global outbreak in
domestic and wild birds and wild mammals began in 2021. Live seals
showed signs of respiratory and neurological disease including nasal
and ocular discharge, coughing, unresponsiveness, and seizures.
Eighteen percent of the stranded seals (33 out of 180) were tested for
avian influenza via polymerase-chain-reaction. A subset of seals was
positive for HPAI H5N1, with preliminary findings confirmed by the
United States Department of Agriculture's National Veterinary Services
Laboratories. Of the 33 seals tested during the UME period 19 (58
percent) were positive for H5N1 (17 harbor seals; 2 gray seals) and 14
(42 percent) tested negative. Twelve H5N1 positive seals had
histopathology conducted and 11 of those seals had lesions (primarily
respiratory and/or neurologic) suspected or consistent with avian
influenza infection. Sequencing of the H5N1 virus detected in seals
suggests the seals were infected from spillover events from infected
wild birds to these seals. While the UME was not occurring in the
Project Area, the populations affected by the UME were the same as
those potentially affected by the Project. Information on this UME is
available online at: <a href="https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-life-distress/active-and-closed-unusual-mortality-events</a>.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 dB
threshold from the normalized composite audiograms, with the exception
for lower limits for low-frequency cetaceans where the lower bound was
deemed to be biologically implausible and the lower bound from Southall
et al. (2007) retained. Marine mammal hearing groups and their
associated hearing ranges are provided in table 3.
[GRAPHIC] [TIFF OMITTED] TR22MY24.003
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013). For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
NMFS notes that in 2019a, Southall et al. recommended new names for
hearing groups that are widely recognized. However, this new hearing
group classification does not change the weighting functions or
acoustic thresholds (i.e., the weighting functions and thresholds in
Southall et al. (2019a) are identical to NMFS 2018 Revised Technical
Guidance). When NMFS updates our Technical Guidance, it will be
adopting the updated Southall et al. (2019a) hearing group
classification.
Potential Effects of Specified Activities to Marine Mammals and Their
Habitat
The effects of underwater noise from the Project's specified
activities have the potential to result in the harassment of marine
mammals in the specified geographic region. The proposed rule included
a discussion of the effects of anthropogenic noise on marine mammals
and the potential effects of underwater noise from the Project's
specified activities on marine mammals and their habitat (88 FR 8996,
February
[[Page 45318]]
10, 2023). While some new literature has been published since
publication of the proposed rule (e.g., HDR, Inc., 2023, Holme et al.,
2023, Meyer-Gutbrod et al., 2023, Van Parijs et al. 2023, Davis et al.
2023), there is no new information that NMFS is aware of that changes
the analysis in the proposed rule. The information and analysis
included in the proposed rule is referenced and used for this final
rule and is not repeated here (88 FR 8996, February 10, 2023).
However, some new papers, which NMFS considers part of the best
available science, further informed, though not necessarily changed,
its analysis and consideration of mitigation and monitoring measures
(e.g., Crowe et al., 2023, Davis et al. 2023, Holdman et al., 2023, Van
Parijs et al. 2023, Westwell et al., 2024). Crowe et al. (2023)
research evaluated the use and importance of real-time data for
detecting NARW. The shift in NARW habitat use motivated the integration
of additional ways to detect the presence of NARW and passive acoustic
detections of right whale vocalizations reported in near real-time
became an increasingly important tool to supplement visual sightings.
The proposed rule did include real-time and daily awareness measures
and sighting communication protocols, and NMFS did evaluate these
measures and added details for clarity or updated the reporting
mechanisms, such as in the case of sighting an injured NARW.
Davis et al. (2023) analyzed NARW individual upcalls from 2 years
of acoustic recordings in southern New England which showed that NARW
were detected at least one day every week throughout both years, with
highest NARW presence from October to April. Within southern New
England, on average NARW persisted for 10 days and recurred again
within 11 days. An evaluation of the time period over which it is most
effective to monitor prior to commencing pile driving activities showed
that with 1 h of pre-construction monitoring there was only 4%
likelihood of hearing a NARW, compared to 74% at 18 h. Therefore,
monitoring for at least 24 h prior to activity will increase the
likelihood of detecting an up-calling NARW. Holdamn et al. (2023)
studied harbor porpoise habitats in the Gulf of Maine (GOM) and
Southern New England waters providing baseline data on the occurrence
and foraging activity of porpoises from 2020 to 2022. Harbor porpoises
were present year-round in the GOM with peak detections in the summer
and fall. The observed seasonal pattern of harbor porpoise occurrence
in this study is consistent with prior information on the general
distribution of the GOM/Bay of Fundy stock (Wingfield et al., 2017;
NMFS, 2021). In line with previously reported distribution patterns,
harbor porpoise occurrence in Southern New England was high in fall,
winter, and spring, but porpoises were largely absent in the summer.
Results from generalized additive models suggest that time of year,
hour of day, lunar illumination, and temperature are significant
contributors to harbor porpoise presence (detection mainly through
echolocation clicks) and/or foraging effort.
Van Parijs et al. (2023), provides 2 years of baseline data on
cetacean species' presence, vessel activity, and ambient sound levels
in the southern New England wind energy area. With eight species/
families present in the area for at least 9 months of the year, this
area represents an important habitat for cetaceans. Most species showed
seasonality, with peak daily presence in winter (harbor porpoise, North
Atlantic right, fin, and humpback whales), summer (sperm whales),
spring (sei whales), or spring and fall/autumn (minke whales).
Delphinids were continuously present and blue whales present only in
January. The NARW was present year-round with high presence in October
through April. Westell et al. (2024) collected baseline data from 2020
to 2022, with six passive acoustic recorders deployed in the vicinity
of Nantucket Shoals and Cox's Ledge. Data were analyzed for sperm whale
presence, and demographic composition was assessed using interclick
intervals. Presence varied by site, season, and year. Sperm whales were
detected year-round but the majority (78%) of days with acoustic
occurrences were between May and August. Sound propagation tests were
conducted at two sites and predicted detection ranges within 20-40 km
indicate that sperm whales were likely in proximity to the WEA. These
results provide a baseline for ongoing sperm whale presence, especially
that of social groups which may be more sensitive to disturbance.
Separately, since issuance of the proposed rule, a non-peer
reviewed report on HRG survey noise has also been released (Rand et
al., 2023). The measured data presented in Rand et al., (2023) are
consistent with our evaluation of sound levels produced by HRG surveys
(i.e., received sound levels at the ranges measured) and vessels and do
not change our assessments of potential impacts. The analysis of those
data in the Rand et al. (2023) report, however, includes methodological
issues and therefore does not support all of their conclusions.
Since the publication of the proposed rule, new scientific
information has become available that provides additional insight into
the sound fields produced by turbine operation (HDR, Inc., 2023; Holme
et al., 2023). Recently, Holme et al. (2023) stated that Tougaard et
al. (2020) and St[ouml]ber and Thomsen (2021) extrapolated levels for
larger turbines and should be interpreted with caution since both
studies relied on data from smaller turbines (0.45 to 6.15 MW)
collected over a variety of environmental conditions. They demonstrated
that the model presented in Tougaard et al. (2020) tends to
overestimate levels (up to approximately 8 dB) measured to those in the
field, especially with measurements closer to the turbine for larger
turbines. Holme et al. (2023) measured operational noise from larger
turbines (6.3 and 8.3 MW) associated with three wind farms in Europe
and found no relationship between turbine activity (i.e., power
production, which is proportional to the blade's revolutions per
minute) and noise level. However, it was noted that this missing
relationship may have been masked by the area's relatively high ambient
noise sound levels. Sound levels (i.e., root-mean-square (RMS)) of a
6.3 MW direct-drive turbine were measured to be 117.3 dB at a distance
of 70 meters. However, measurements from 8.3 MW turbines were
inconclusive as turbine noise was deemed to have been largely masked by
ambient noise.
In addition, operational turbine measurements from the Coastal
Virginia Offshore Wind pilot pile project indicated that noise levels
from two, 7.8 m monopiles WTGs were higher when compared to those of
the Block Island wind farm, likely due to vibrations associated with
the monopiles structure (HDR, Inc., 2023). NMFS notes that this updated
information does not change our assessment for impacts of turbine
operational sound on marine mammals. As described in the proposed rule,
NMFS will require Sunrise Wind to measure operational noise levels,
however, is not authorizing take incidental to operational noise from
WTGs.
In addition, recently, a National Academy of Sciences, Engineering,
and Medicine (NASEM) panel of independent experts concluded that the
impacts of offshore wind operations on NARW and their habitat in the
Nantucket Shoals region (a key winter foraging habitat tens of
kilometers to the east of the Project Area) are uncertain due to the
limited data available at this
[[Page 45319]]
time and recognized what data is available is largely based on models
from the North Sea that have not been validated by observations
(National Academy of Sciences, 2023). The report also identifies that
major oceanographic changes have occurred to the Nantucket Shoals
region over the past 25 years, and it will be difficult to isolate from
the much larger variability introduced by natural and other
anthropogenic sources (e.g., climate change). This report is specific
to the Nantucket Shoals region which is unlikely to be influenced by
any long-term operational effects of the Sunrise Wind Project; however,
the findings in the report align with those presented in the proposed
rule. More recently, NMFS concluded ESA consultation on Federal actions
associated with the Project, including NMFS' proposal to issue a 5-year
LOA to Sunrise Wind and BOEM's approval of the Construction and
Operation Plan (COP) which covers the 30 years of the Project's
operation and subsequent decommissioning.
Overall, new scientific information regarding the general
anticipated effects of OSW construction and operations on marine
mammals and their habitat support the findings in the proposed rule.
The information and analysis regarding the potential effects on marine
mammals and their habitat was included in the proposed rule and is not
repeated here (88 FR 8996, February 10, 2023).
Estimated Take
As noted in the Changes From the Proposed to Final Rule section,
NMFS has revised the take estimates for several species based on
updated information received from Sunrise Wind and its concurrence with
comments received on the proposed rule. While distances to thresholds
and estimated take have been updated, the underlying methodologies to
calculate these values have not changed. This section provides an
estimate of the number of incidental takes that may occur through this
rulemaking, which informs both NMFS' small numbers and the negligible
impact determination. Authorized takes would be primarily by Level B
harassment, as use of the acoustic sources (i.e., impact and vibratory
pile driving, pneumatic hammering, site characterization surveys, and
UXO/MEC detonations) have the potential to result in disruption of
marine mammal behavioral patterns due to exposure to elevated noise
levels. Impacts such as masking and TTS can contribute to behavioral
disturbances. There is also some potential for auditory injury (Level A
harassment) to occur in select marine mammal species incidental to the
specified activities (i.e., impact pile driving, and UXO/MEC
detonations). As described below, the larger distances to the PTS
thresholds, when considering marine mammal weighting functions,
demonstrate this potential. For mid-frequency hearing sensitivities,
when thresholds and weighting and the associated PTS zone sizes are
considered, the potential for PTS from the noise produced by the
project is negligible. The required mitigation and monitoring measures
are expected to minimize the severity of the taking to the extent
practicable. As described previously, no serious injury or mortality is
anticipated or authorized for this project.
Generally speaking, we estimate take by considering: (1) acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment (as well as impulse metric
(Pascal-second) pressure and peak sound pressure level thresholds above
which marine mammals may incur non-auditory injury from underwater
explosive detonations); (2) the area or volume of water that will be
ensonified above these levels in a day; (3) the density or occurrence
of marine mammals within these ensonified areas; and (4) the number of
days of activities. NMFS notes that while these basic factors can
contribute to a basic calculation to provide an initial prediction of
takes, additional information that can qualitatively inform take
estimates is also sometimes available (e.g., previous monitoring
results or average group size). Below, NMFS describes the factors
considered here in more detail and present the authorized take
estimates.
Marine Mammal Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
are likely to be behaviorally harassed (equated to Level B harassment)
or to incur PTS of some degree (equated to Level A harassment).
Thresholds have also been developed to identify the levels above which
animals may incur different types of tissue damage (non-acoustic Level
A harassment or mortality) from exposure to pressure waves from
explosive detonation. A summary of all NMFS' thresholds can be found
at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Level B harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., other noises in the area) and the
receiving animals (e.g., animal hearing, motivation, experience,
demography, life stage, depth) and can be difficult to predict (e.g.,
Southall et al., 2007, 2021; Ellison et al., 2012). Based on what the
available science indicates and the practical need to use a threshold
based on a metric that is both predictable and measurable for most
activities, NMFS typically uses a generalized acoustic threshold based
on received level to estimate the onset of behavioral harassment. NMFS
generally predicts that marine mammals are likely to be behaviorally
harassed in a manner considered to be Level B harassment when exposed
to underwater anthropogenic noise above root-mean-squared pressure
received levels (RMS SPL) of 120 dB (referenced to re 1 [mu]Pa) for
continuous (e.g., vibratory pile driving, drilling) and above RMS SPL
160 dB re 1 [mu]Pa for non-explosive impulsive (e.g., seismic airguns)
or intermittent (e.g., scientific sonar) sources (table 4). Generally
speaking, Level B harassment take estimates based on these behavioral
harassment thresholds are expected to include any likely takes by TTS
as, in most cases, the likelihood of TTS occurs at distances from the
source less than those at which behavioral harassment is likely. TTS of
a sufficient degree can manifest as behavioral harassment, as reduced
hearing sensitivity and the potential reduced opportunities to detect
important signals (e.g., conspecific communication, predators, prey)
may result in changes in behavior patterns that would not otherwise
occur.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups,
based on hearing sensitivity, as a result of exposure to noise from two
different types of sources (i.e., impulsive or non-impulsive). As dual
metrics, NMFS considers onset of PTS (Level A harassment) to have
occurred when either one of the two metrics is exceeded (i.e., metric
resulting in the
[[Page 45320]]
largest isopleth). The Project includes the use of both impulsive and
non-impulsive sources.
These thresholds are provided in table 4 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
<a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
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Explosive sources--Based on the best available science, NMFS uses
the acoustic and pressure thresholds indicated in tables 5 and 6 to
predict the onset of behavioral harassment, TTS, PTS, tissue damage,
and mortality incidental to explosive detonations. Given that Sunrise
Wind would be limited to detonating one UXO/MEC per
[[Page 45322]]
day, the TTS threshold is used to estimate the potential for Level B
(behavioral) harassment (i.e., individuals exposed above the TTS
threshold may also be harassed by behavioral disruption). However, NMFS
does not anticipate that any impacts from exposure to UXO/MEC
detonation below the TTS threshold would constitute behavioral
harassment).
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Additional thresholds for non-auditory injury to lung and
gastrointestinal (GI) tracts from the blast shock wave and/or onset of
high peak pressures are also relevant (at relatively close ranges)
(table 6). These criteria have been developed by the U.S. Navy (DoN
(U.S. Department of the Navy) 2017a) and are based on the mass of the
animal and the depth at which it is present in the water column.
Equations predicting the onset of the associated potential effects are
included below (table 6).
[[Page 45323]]
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Marine Mammal Density and Occurrence
In this section, NMFS provides the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations. Depending on the species and as described in the take
estimation section for each activity, take estimates may be based on
the Roberts et al. (2023) density estimates, marine mammal monitoring
results from HRG surveys, or average group sizes.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory and the Marine-life Data and Analysis
Team, based on the best available marine mammal data obtained in a
collaboration between Duke University, the Northeast Regional Planning
Body, the University of North Carolina Wilmington, the Virginia
Aquarium and Marine Science Center, and NOAA (Roberts et al., 2016a,
2016b, 2017, 2018, 2020, 2021a, 2021b, 2023), represent the best
available information regarding marine mammal densities in the Project
Area. Density data are subdivided into five separate raster data layers
for each species: (1) Abundance (density); (2) 95 percent Confidence
Interval of Abundance; (3) 5 percent Confidence Interval of Abundance;
(4) Standard Error of Abundance; and (5) Coefficient of Variation of
Abundance. The density estimates have not changed since the Proposed
Rule.
Below, NMFS describes the observational data from monitoring
reports and average group size information, both of which are
appropriate to inform take estimates for certain activities or species
in lieu of density estimates. As noted above, the density and
occurrence information type resulting in the highest take estimate was
used, and the explanation and results for each activity are described
in the specific activity sub-sections in the Modeling and Take
Estimation section.
For some species and activities, observational data from Protected
Species Observers (PSOs) aboard HRG and geotechnical survey vessels
indicate that the density-based exposure estimates may be insufficient
to account for the number of individuals of a species that may be
encountered during the planned activities. PSO data from geophysical
and geotechnical surveys conducted in the area surrounding the Sunrise
Wind Lease Area and SWEC route from October 2018 through February 2021
(AIS-Inc., 2019; Bennett, 2021; Stevens et al., 2021; Stevens and
Mills, 2021) were analyzed to determine the average number of
individuals of each species observed per vessel day. For each species,
the total number of individuals observed (including the ``proportion of
unidentified individuals'') was divided by the number of vessel days
during which observations were conducted in 2018-2021 HRG surveys
(i.e., 407 survey days) to calculate the number of individuals observed
per vessel day, as shown in the final columns of tables 7 and 8 as
found in the Updated Density and Take Estimation Memo.
For other less-common species, the predicted densities from Roberts
and Halpin (2022) are very low and the resulting density-based exposure
estimate is less than a single animal or a typical group size for the
species. In such cases, the mean group size was considered as an
alternative to the density-based or PSO data-based take estimates to
account for potential impacts on a group during an activity. Mean group
sizes for each species were calculated from recent aerial and/or
vessel-based surveys, as shown in table 7. Additional detail regarding
the density and occurrence as well as the methodology used to estimate
take for
[[Page 45324]]
specific activities is included in the activity-specific subsections
below.
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The estimated exposure and take tables for each activity present
the density-based exposure estimates, PSO-data derived take estimate,
and mean group size for each species. The number of takes by Level B
harassment Sunrise Wind requested and NMFS authorizes is based on the
largest of these three values. As mentioned previously, the number of
takes by Level A harassment authorized is based strictly on density-
based exposure modeling results, rounded up to the nearest whole number
or group size, as appropriate.
Modeling and Take Estimation
Sunrise Wind estimated density-based exposures in two separate
ways, depending on the activity. For Level A
[[Page 45325]]
and Level B harassment from the noise produced by foundation
installation, sophisticated sound and animal movement modeling was
conducted to account for the movement and behavior of marine mammals
and their exposure to the underwater sound fields produced during
impact pile driving, as described below. Sunrise Wind also estimated
the potential for Level B harassment from foundation installation using
a simplified ``static'' method wherein the take estimates are the
product of density, ensonified area above the NMFS defined threshold
levels (e.g., unweighted 160 dB SPLrms), and number of days of
installation. Take estimates from landfall construction activities, HRG
surveys, and UXOs/MECs detonations were also calculated based on the
static method (i.e., animal movement modeling was not conducted for
these activities). For some species, observational data from PSOs
aboard HRG survey vessels or group size indicated that the density-
based take estimates may be insufficient to account for the number of
individuals of a species that may be encountered during the planned
activities; thus, adjustments were made to the density-based estimates.
The ``static'' take estimates are calculated by multiplying the
expected densities of marine mammals in the activity area(s) by the
area of water likely to be ensonified above the NMFS defined threshold
levels (e.g., unweighted 160 dB SPLrms) by the total number of days
each month. The number of days per month is dependent upon the
construction schedules (see tables 1-5 in the March 2023 Reduced WTG
Foundation Scenario Memo). The results of these calculations were then
summed to arrive at the total estimated exposure from WTG and OCS-DC
foundation installations. That is, Sunrise Wind assumed all 87
foundations are installed in the months with the highest densities for
each species. For foundation installation, the maximum monthly density
is multiplied by the total ensonified area (highest between summer or
winter) for the first month of construction of WTG monopile
installation. The second highest monthly density is multiplied by the
total ensonified area (highest between summer or winter) for the second
month of WTG monopile installation. Lastly, the maximum monthly density
is multiplied by the total ensonified area for OCS-DC installation.
These three values are then added together to derive the ``static''
take estimate value for all foundation installation. Total ensonified
area is calculated by multiplying the single pile ensonified area by
the total number of piles installed within the first and second month
of construction. For example, if 56 WTG monopiles were assumed to be
installed during the month with the highest density (e.g., July) and 46
were installed in the month with the second highest density (e.g.,
August), the resulting equation would be:
Max monthly density [July] x total ensonified area for first month
[summer WTG monopile] + 2nd highest monthly density [August] x total
ensonified area for the 2nd month [summer WTG monopile] + max monthly
density [July] x total ensonified area for first month [summer OCS-DC]
= Total ``static'' take estimate.
In some cases, the exposure estimates from the animal movement
modeling methods described above directly informed the take estimates.
In other cases, adjustments were made based on previously collected
monitoring data or average group size as described above. In all cases,
Sunrise Wind requested, and this final rule allows for, an amount of
take to be authorized that is based on the highest amount of exposures
estimated from any given method.
Below, NMFS presents the distances to NMFS thresholds and take
estimates associated with each activity (e.g., WTG and OCS-DC
foundation installation) as a result of exposure modeling or the static
method as described above.
WTG and OCS-DC Foundation Installation--Here, for WTG and OCS-DC
monopile foundation installation, NMFS provides summarized descriptions
of the modeling methodology used to predict sound levels generated from
the Project with respect to harassment thresholds and potential
exposures using animal movement, the density and/or occurrence
information used to support the take estimates for this activity, and
the resulting acoustic and exposure ranges, exposures, and authorized
takes. Additional modeling details are available in the proposed rule
Federal Register notice (88 FR 8996, February 10, 2023).
To complete the Project, Sunrise Wind proposed five total pile
installation schedules, as construction schedules cannot be fully
predicted due to uncontrollable environmental factors (e.g., weather)
and installation schedules include variability (e.g., drivability).
Table 8 describes the assumptions in each scenario with regard to how
piles are installed relative to each other as well as the amount of
pile driving time (days) allocated to each month.
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[[Page 45327]]
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Sunrise Wind assumed that a maximum of three (if installed
sequentially) or four (if installed concurrently) WTG monopile
foundations and four pin piles related to the jacket foundation for the
OCS-DC
[[Page 45328]]
may be driven in 24 hours. It is unlikely that this installation rate
would be consistently possible throughout the SRWF construction phase,
but this schedule was considered to have the greatest potential for
Level A harassment (i.e., PTS) and was, therefore, carried forward into
the Level A harassment take estimation. Exposure ranges
(ER<INF>95percent</INF>) to Level A SELcum thresholds resulting from
animal exposure modeling assuming various consecutive pile installation
scenarios and 10 dB of attenuation by a NAS are summarized in table 9.
In the event two installation vessels are able to work simultaneously,
exposure ranges (ER<INF>95percent</INF>) to Level A SELcum thresholds
from the three concurrent pile installation scenarios and 10 dB of
attenuation by a NAS are summarized in table 10. Comparison of the
results in table 9 and table 10 show that the scenario assuming
consecutive installation of 2 WTG monopiles per day (which assumes the
piles are located close to each other) and concurrent installation of 4
WTG monopiles per day at distant locations yield very similar results.
This makes logical sense because the close proximity of the two piles
installed at each location in the concurrent scenario is very similar
to the 2 piles installed in the consecutive installation scenario and
animals are unlikely to occur in both locations in the concurrent
scenarios when they are far apart. Exposure ranges from the
``Proximal'' concurrent installation scenario (assuming close distances
between concurrent pile installations) are slightly greater than from
the ``Distal'' concurrent installation scenario (assuming long
distances between concurrent pile installations) reflecting the fact
that animals may be exposed to slightly higher cumulative sound levels
when concurrent pile installations occur close to each other.
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[[Page 45329]]
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As described previously, Sunrise Wind also modeled acoustic ranges
to NMFS harassment thresholds. Because the Level B harassment threshold
is instantaneous, NMFS considers the acoustic ranges most appropriate
to identify areas at which PSOs would determine if a Level B harassment
take has occurred, al
[…truncated; see source link]Indexed from Federal Register on May 22, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.